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DETERMINED    IN    THE 


SUPREME     COURT 


OF    THE 


STATE   OF  NEW-YORK. 


BY  OLIVER  L.  BARBOUR. 

Counsellor  lit  Law. 


VOL.  XX. 


NEW    YORK. 
BANKS  &  BROTHERS,  LAW   PUBLISHEBS^ 

No    144  NASSAU  STREET. 
ALBANY:    475    BROADWAY. 

1883. 


,3^33 


Entered  according  to  Act  of   Congress,  in  the  year    eighteen  hundred  and  flfty-six 

By   GOULD,   BANKS   &   CO. 

int'.ie  Clerk's  Office  of  the  District  Court  of  the  Northern  District  of  New  York. 


Eiitcic;!  according  to  act  of  Congress,  in  the  year  one  tliousand  eight  hundred  and 

eighty-three. 

By  banks   &   BROTHERS, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


JUSTICES  OF  THE  SUPREME  COURT, 

DURING  THE  YEARS  1854  AND  1855. 


FIRST    JUDICIAL    DISTRICT 

Class  1.  HENRY  P.  EDWARDS.* 
"    "   EDWARD  P.  COWLES.f 
"    2.  WILLIAM  MITCHELL.J 
"     3.  JAMES  J.  ROOSEVELT.t 
«    4.  ROBERT  H.  MORRIS. 
"     "   THOMAS.  W.  CLERKE. 

second  judicial  district. 

«  !.  SEWARD  BARCULO.** 

"  "   GILBERT  DE AN.ft  U 

"  2.  JOHN  W.  BROWN.t 

"  3.  SELAH  B.  STRONG.! 

"  4.  WILLIAM  ROCKWELL 

THIRD    JUDICIAL    DISTRICT, 

"  1.  MALBONE  WATSON. 

"  2.  AMASA  J.  PARKER.t 

«  3.  WILLIAM  B.  WRIGllT.t 

'  4.  IRA  HARRIS. 

FOURTH    JUDICIAL    DISTRICT. 

"     1.  AUGUSTUS  C.  HAND.Jt 
"     2.  DANIEL  CADY.ttl 
"     "   AUGUSTUS  BOCKES.*** 
•'     3.  CORNELIUS  L.   ALLEN.^ 
"    4.  AMAZIAH  B.  JAMES. 
(3) 


IV  JUSTICES  OF  THE  SUPREME  COURT. 

FIFTH    JUDICIAL    DISTKICT. 

Class  1.  WILLIAM  F.  ALLEN. 

"     2.  FREDERICK  W.  IIUBBARD.J 
*      3.  DANIEL  PRATT.«[ 
'     4.  WILLIAM  J.  BACON. 

SIXTH    JUDICIAL    DISTRICT. 

'"  1.  SCHUYLER  CRirrEN.JJ 

"  2.  WILLIAM  H.  SHANKLAND.t 

"  3.  HIRAM  GRAY.t 

"  4.  CHARLES  MASON. 

SEVKXTH    JUDICIAL    DISTRICT. 

"  1.  SAMUEL  L.  SELDEN. 

"  2.  THOMAS  A.  JOHNSON.J 

"  3.  THERON  R.  STRONG.^ 

"  4.  HENRY  WELLES. 

EIGHTH    JUDICIAL    DISTRICT. 

"  1.  RICHARD  P.  MARVIN.lt 

"  2.  LEVI  F.  BOWEN.J 

"  3.  JAMES  MULLETT.«[ 

"  4.  BENJAMIN  F.  GREENE. 

*  Died  Feb.  28,  1855. 

t  Appointed  by  the  Governor  to  fill  the  ^  acancy  caused  by  the  death  of 
Judge  Edwards. 

^  Presiding  Justice  in  1854. 

Tf  Presiding  Justice  in  1855. 

**  Died  June  21,  1854. 

tt  Appointed  by  the  Governor  to  fill  the  vacancy  occasioned  by  the  death  of 
Judge  Barculo. 

'^'^  Sitting  in  the  Court  of  Appeals  in  1855. 

TI^  Resigned  January  1,  1855. 

***  Appointed  bj'  the  Governor  to  fill  the  vacancy  occasioned  by  the  resigna- 
tion of  Judge  Cady. 


CASES 


REPORTED  IN  THIS  VOLUME. 


B 


BAKER,  Brewster  v 364 
BerbciTich,  The  People  v 224 

Bigelow,  Orr  v 21 

Bigler  v.  The  New  York  Central 

Ins.  Co G36 

Board  of  Supervisors  of  Cayuga 

county,  Boyce  v 294 

Board  of  Supervisors,  The  People 

ex  rel.  The  Mu.  Life  Ins.  Co.  v.     81 

Bogert  v.  Haight, 251 

Boyce  v.  The  Board  of  Supervisors 

of  Cayuga  county, 294 

Brady,   The  United   States  Trust 

Company  v 119 

Brewster  v.  Baker, 364 

Briggs  v.  Briggs, 477 

v.  Palmer, 392 

V.  Smith, 409 

Buffalo  and  N.  Y.  Rail  Road  Co., 

Stephens  v.  . 332 

Buffalo  and  Pittsburgh  Rail  Road 

Co.,  The  Ellicottville  and  Great 

Valley  Plank  Road  Co.  v 644 

c 

Clapp,  Thomas  v 165 

Clark  V.  Dales, 42 


Clark  V.  Van  Vrancken 278 

Cole  V.  Moffitt 18 

— — ,  Trustees  of  Theological  Seix 

inary  of  Auburn  v. 321 

Crompton,  Smith  v 262 

Conover  v.  Van  Neste 547 

Creighton  v.  IngersoU, 541 

Crilley,  The  People  v 246 

Curtiss  V.  The  Rochester  and  Syi 

acuse  Rail  Road  Co 282 

D 

Daily,  Etz  v 82 

Dales,  Clark  v 42 

Danforth,  Hager  v. 16 

Dennis  v.  Tarpenny, 371 

De  Peyster,  Hogan  v., 100 

Divine,  Welton  v 9 

E 

Eastern  Plank  Road  Company  v. 

Vaughan, 155 

Ellicottville  and  Great  Valley  Plank 
Road  Co.  V.  The  Buffalo  and 

Pittsburgh  Rail  Road  Co C44 

F 

Fiero  v.  Reynolds, 275 

FLshcr.  Hall  V 441 


CASES  REPORTED. 


Fisher,  Tlic  Teople  ex  rel.  Booth  v.  652 

Follett,  Griffith  v 620 

Foster  v.  Pettibone 350 

Fountain,  Roof  v 627 

French  v.  New 481 


G 


Gilbert,  Ingraham  v 151 

Gillespie  v.  Rosekrants, 35 

Glen  Cove  Mutual  Insurance  Co. 

V.  Harrold, 298 

Grady  v.  Ward, 543 

Green  v.  Telfair 11 

Griffith  V.  Follett, 620 

Groat  V.  Rees, 26 


H 


Hager  v.  Danforth, 
Haight;  Bogeit  v. . 
,  Pepper  v. . 


Hall  V.  Fisher, 

Hammond  v.  The  Hudson  River 

Iron  and  Machine  Co 

Hams,  Murdock  v 

Han-old,  The  Glen  Cove  Mutual 

Ins.  Co.  V. 

Higgins  V.  Wliitson, 

Hogan  V.  De  Pcyster, 

Hudson  River  Iron  and  Machine 

Company,  Hammond  'v 

Hudson   River  Iron  and  Machine 

Company,  Hunter  v 

Hunter  v.  The  Hudson  River  Iron 

and  Machine  Company, 


16 
251 
429 
441 

378 
407 

298 
141 
100 

378 

493 

493 


Imlay,  The  People  v 68 

Ingerscd,  Crcigliton  v 541 

Ingrabam  v.  Gilbert,    151 


K 

King  V.  LouTy, 530 


Layman  v.  Whiting, 559 

Lewis  V.  Trickey, 387 

Loughlin,  McDonough  v 238 

Lowry,  King  v 532 

M 

McConnell,  Rathbone  v 311 

McDonough  v.  Loughlin, 238 

McMillan   v.    The   Saratoga    and 

Washington  Rail  Road  Company,  449 

Markham,  Elton  v 343 

Matter  of  the  New  York  Centi-al 

Rail  Road  Company, 419 

Milliman  v.  Neher, 37 

Milk,  Rich  v 616 

Mitchell  V.  Worden, 253 

Moffitt,  Cole  V 18 

Morton,  Mount  v , 123 

Mount  V.  Morton, 123 

Murdock  v.  Harris 407 


N 


National  Protection  Insurance  Co., 
The  New  York  Central  Insur- 
ance Company  v 4G8 

Neher,  Milliman  v y7 

Nelson,  Cutwater  v 29 

New,  French  v 481 

New  York  Central  Rail  Road  Co., 

matter  of, 419 

New  York  Central  Ins.  Co.  v.  The 

National  Protection  Ins.  Co 468 

NewYork  Central  Ins.  Co.,  Big- 
Jer  v 635 


0 


Tacqucs  v.  Short. 


Olcott  V.  Robinson, ,    148 

Orr  V.  Bigclow, 2I 

269    Cutwater  v.  Nelson 2S 


CASES  REPORTED 


Tii 


Palmer,  Briggs  v 392 

Partenheimcr  v.  Van  Order, 479 

Peabody  v.  The  Washington  Coun- 

tj'  Mutual  Insurance  Co 389 

Pepper  v.  Haight, 429 

Pettibone,  Foster  v 350 

People  V.  Berbenich 224 

V.  Crilley 246 

ex  rel.  Booth  v.  Fisher, . . .   652 

V.  Imlay, 68 

ex  rel.  Tha  Mutual  Life  In- 
surance Co.  V.  The  Board 

of  Supervisors, 81 

ex  rel.  Lockwood  v.  Scrug- 

ham, 302 

ex  rel.  Mai-shall  v.  The  Ra- 

venswood  &c.  Turnpike 

and  Bridge  Co 518 

V.    Toynbee, 168 

V.  Wynhamer, 567 


R 


Rathbone  v.  McConnell, SIX 

Ravenswood    &c.    Turnpike    and 
Bridge  Co.,  The  People  ex  rel, 

Marshall,  v 518 

Ilees,  Groat  v 26 

Reynolds,  Fiero  v 275 

Rich  V.  Milk, 616 

Robinson,  Olcott  v 148 

Rochester  and  Syracuse  Rail  Road 

Co.,  Curtiss  V 282 

Rogers  v.  Tillty , 639 

Rosekrants,  Gillespie  v 35 

Roof  V.  Fountain 527 


S 

Saratoga  and  Washington  Rail 
Road  Company,  McMillan  v..  . .   449 

Saratoga  and  Washington  Rail 
Road  Company,  Uuderhill  V,.. .  466 

Scrugham,  The  People  ex  rel. 
Lo*^.k\vood  V 302 


Short,  Jacques  v 269 

Smith  V.  Compton, 262 

,  Briggs  V 409 


Sprague,  Stone  v 609 

Stephens  v.  The  Buffalo  and  New 

York  City  Rail  Road  Company,  332 
Stone  V.  Sprague, 509 


T 


Tarpenny,  Dennis  v 371 

Telfair,  Green  v 11 

Thomas  v.  Clapp, 165 

Tilley,  Rogers  v. 639 

Toynbee,  The  People  v 168 

Trickey,  Lewis  v 387 

Trustees  of  the  Theological  Semi- 
nary of  Auburn  v.  C^le 321 


u 


UnderhiU   v.    The    Saratoga  and 

Washington  Rail  Road  Company,  466 
United  States  Trust  Co.  v.  Brady,  119 


Van  Neste  v.  Conover, 517 

Van  Order  v.  Partenheimer, 479 

Van  Vrancken,  Clark  v 278 

Vaughan,  The  Eastern  Plank  Road 
Company  v 165 


w 

Ward,  Grady  v 643 

Washington  County  Mutual  Insur- 
ance Company,  Peabody  v 339 

Welton  V.  Divine, 9 

White  V.  Bullock, 91 

AVhiting,  Layman  v 559 

Whitson,  Higgins  v 141 

Worden,  Mitchell  v 253 

Wynhamer  v.  The  People, 567 


CASES 


IN 


taw  antf  ^quilu 


IN   THE 


SUPREME    COUET 


OF   THE 


STATE   OF   NEW   YORK. 


Hannah  M.  Welton  vs.  J).  Divine. 

The  presumption  that  he  who  supplies  the  money  to  make  a  purchase  intends  it 
for  his  own  benefit,  rather  than  that  of  another,  does  not  appl}'  in  cases,  like 
that  of  parent  and  child  or  husband  and  wife,  where  the  purchase  may  fairly 
be  deemed  to  have  been  made  for  another  from  motives  of  natural  love  and 
affection. 

Tlie  presumption,  in  such  cases,  is  that  the  purchase  is  intended  as  an  advance- 
ment, unless  the  contrary  is  established  by  proof. 

Therefore  where  a  purchase  is  made  by  a  husband,  and  the  deed  taken  in  the 
name  of  his  wife,  a  resulting  trust  cannot  be  established,  in  favor  of  the  husband, 
without  some  evidence  to  rebut  the  presumption  that  the  deed  was  intended  as 
a  provision  in  the  wife's  favor. 

THIS  was  an  action  to  recover  the  possession  of  a  farm  in  the 
town  of  Rochester,  in  the  county  of  Ulster.  It  was  tried  at  the 
Ulster  circuit,  in  November,  1852,  before  Mr.  Justice  Wright. 
The  plaintifiF  gave  in  evidence  a  deed  of  the  premises  to  herself 
from  Peter  Elmendorf  and  wife,  bearing  date  the  26th  of  No- 
VoL.  XX.  2 


10  CASES  IX  THE  SUPKEME  COURT. 

Welton  V.  Divine. 

vemLer,  1829.  The  consideration  expressed  in  the  deed  was  $500 
paid  by  the  grantee.  Also,  the  record  of  the  appointment  of 
trustees  of  the  estate  of  Enos  Welton,  the  husband  of  the 
plaintiff,  as  an  absconding  debtor,  dated  February  28,  1842. 
Also  a  deed  from  the  trustees  to  Edmond  Brugh,  dated  July 
1.  1842,  conveying  all  the  estate,  right,  title  and  interest  of 
Enos  Welton  in  the  premises.  The  defendant  claimed  to  hold 
the  premises  under  this  title. 

The  plaintiff  further  proved  by  her  son  that  she  and  her  hus- 
band kept  separate  purses  ;  that  she  had  money  which  she  con- 
cealed from  her  husband.  That  the  money  with  which  the  land 
was  purchased  was  furnished  by  her  to  her  husband  when  he 
went  to  make  the  purchase.  Upon  his  cross-examination  the 
same  witness  stated  that  he  knew  of  no  way  the  plaintiff  had 
of  getting  money,  except  from  her  husband.  At  the  time  of 
the  commencement  of  this  suit  Enos  Welton  was  dead. 

The  parties  having  rested,  the  court  decided  that  the  testimony 
established  a  resulting  trust  in  favor  of  Enos  Welton  in  the  es- 
tate purchased  in  the  name  of  Hannah  M.  Welton,  and  nonsuited 
the  plaintiff.  To  this  decision  the  plaintiff  excepted.  The 
cause  was  heard,  at  the  general  term,  upon  a  motion  for  a  new 
trial,  upon  a  bill  of  exceptions. 

M.  Schoonmaker,  for  the  plaintiff. 

H.  Hogehoom,  for  the  defendant. 

By  the  Court,  Harris,  J.  It  is  by  no  means  certain,  from 
the  testimony  in  the  case,  that  Enos  Welton  furnished  the  money 
with  Avhich  the  land  in  question  was  purchased.  But  assuming 
this  to  be  undisputed,  it  would  not  establish  a  resulting  trust. 
The  presumption  that  he  who  supplies  the  money  to  make  a 
purchase  intends  it  for  his  own  benefit  rather  than  that  of  an- 
other, does  not  apply  in  cases,  like  that  of  parent  and  child  or 
husband  and  wife,  where  the  purchase  may  fairly  be  deemed  to 
be  made  for  another  from  motives  of  natural  love  and  affection. 
The  presumption  in  such  cases  is,  that  the  purchase  is  intended 


ALBANY— SEPTEMBER,  1864.  1  ] 

Green  v.  Telfair. 

as  an  ndvanceinerit,  unless  the  contrary  Is  established  by  proof. 
.{Story's  Eq.    Jar.    §§  1202  ^o  1204.     Crabh's  Law   of  Real 
Property,  k  1786.     Jackson  v.   Matsdorf^  11  John.  91.      Gu 
thrie  v.  Gardner,  19   Wend.  414.) 

In  this  case,  there  is  no  evidence  to  rebut  the  presumption 
that  the  deed  taken  by  the  husband  in  the  name  of  his  wife 
was  intended  as  a  provision  in  her  favor.  Without  such  evi 
dence  a  resultinfj  trust  could  not  be  established.  The  nonsuit, 
therefore,  should  be  set  aside,  and  a  new  trial  awarded,  with  costs 
to  abide  the  event. 

[Albany  Gbneral  Term,  September  4, 1854.     Wright,  Harris  and  Watson, 
Justices.] 


Green  vs.  Telfair. 

Whether  matter  contained  in  a  publication  i.s  libellous  or  not,  is  a  question  for  the 
decision  of  the  court;  but,  if  libelous,  it  is  for  the  jury,  and  not  the  court,  to 
say  whether  it  is  applicable  to  the  plaintiff. 

Thus  where  a  libelous  article  did  not  point  to  any  person  in  particular,  but  the 
plaintitr  had  expressly  averred,  in  his  complaint,  that  it  was  published  of,  and 
concerning  himself,  and  he  had  proved  some  flicts  tending  to  sustain  that  aver- 
ment; Held,  that  it  should  have  been  submitted  to  the  juiy  to  determine 
whether  the  libel  was  intended  to  apj)ly  to  the  plaintiff. 

rpmS  was  an  action  for  libel  and  slander.  It  was  tried  at  tlie 
X  Greene  circuit,  in  November,  1852.  The  plaintiff  was  the 
keeper  of  the  Greene  county  poor-house.  The  defendant  was 
county  physician,  and  also  a  coroner  of  the  county.  On  the 
morning  of  the  4th  of  March,  1852,  one  Rebecca  Southard,  an 
invalid  pauper,  was  found  dead  in  her  cell.  An  inquest  was  held 
\iy  the  defendant,  at  the  instance  of  one  of  the  superintendents 
of  the  poor.  The  jnry  found  that  the  deceased  "  c«we  to  her 
death  sometime  in  the  night  of  the  3d  day  of  March,  1852,  in 
consequence  of  the  cold  in  her  cell,  and  of  a  ivant  of  sufficient 


12  CASES  IN  THE  SUPREME  COURT. 

Greeu  v.  Telfair. 

clothing,  bedding  and  proper  care  and  attention^  This  inquest 
the  defendant  procured  to  be  published  in  the  two  public  news- 
papers printed  in  the  village  of  Catskill.  It  was  for  this  publi- 
cation, together  with  some  alleged  slanderous  charges  in  relation 
to  the  same  subject,  that  this  action  was  brought. 

The  plaintiff  alleged,  in  his  complaint,  and  proved  upon  the 
trial,  that,  on  the  4th  of  March,  1852,  and  prior  thereto,  he  was 
the  keeper  of  the  Greene  county  poor-house  ;  and  that  the  power 
of  governing  the  establishment  and  superintending  its  general 
management  was  vested  in  him  as  such  keeper,  and  that  by  the 
rules  and  regulations  which  had  been  adopted  by  the  superin- 
tendents of  the  poor,  it  became,  and  was,  his  duty  to  provide 
reasonable  and  kind  attention  for  all  such  infirm  and  invalid 
paupers  as  Avere  in  and  about  the  house,  and  to  furnish  care, 
attention,  bedding  and  all  things  necessary  and  suitable  for  their 
comfort.  The  plaintiff  then  alleged  in  his  complaint,  that  the 
defendant,  knowing  the  premises  and  intending  to  injure  him  in 
liis  employment  as  such  keeper,  and  to  cause  it  to  be  suspected 
and  believed  that  he,  the  plaintiff,  had  conducted  himself  neg- 
ligently, carelessly  and  improperly  as  such  keeper,  had  wrong- 
fully, injuriously  and  maliciously  pu])lished  of  and  concerning 
him,  the  plaintiff,  in  the  way  of  and  in  respect  to  his  business 
and  employment  as  such  keeper,  and  of  and  concerning  his 
conduct  as  such  keeper,  and  of  and  concerning  the  cause  which 
produced  the  death  of  the  said  Rebecca  Southard,  a  certain 
false,  scandalous,  malicious  and  defamatory  libel,  and  then  stated 
as  such  libel,  the  coroner's  inquest  as  above  set  forth. 

Upon  the  trial,  the  plaintiff's  counsel  claimed  the  right  to 
have  the  question  submitted  to  the  jury,  whether  the  averments 
of  extrinsic  facts  contained  .in  the  complaint  had  not  been  es- 
tai)lished,  and  whether  the  defendant  did  not  intend  by  the  pub- 
lication to  charge  that  the  death  of  Rebecca  Southard  had  been 
occasioned  by  the  neglect  of  the  plaintiff  as  keeper,  and  whether 
such  publication  was  not  so  understood  by  persons  who  read  the 
article  in  the  papers  ;  which  claim  was  overruled  and  denied  by 
the  judge,  who  ruled  and  decided  that  the  article  published  did 
not  point  to  any  individual  in  particular  ;  that  it  might  as  well 


ALBANY— SEPTEMBER,  1554.  |3 


Green  v.  Telfair. 


be  said  to  point  to  the  superintendents,  or  to  other  officers, 
nurses  or  servants  of  the  establishment,  as  to  the  plaintiff,  and 
that  the  plaintiff  could  not  recover  for  such  publication,  in  this 
action.  To  this  decision  the  counsel  for  the  plaintiff  excepted. 
The  judge  charged  the  jury  that  the  words  alleged  in  the 
complaint  to  have  been  spoken  by  the  defendant,  were  admitted 
b}^  the  answer,  and  if  these  words  related  to  the  conduct  of  the 
plaintiff  in  his  employment  as  keeper  of  the  county  poor-house, 
they  were  actionable,  and  the  plaintiff  would  be  entitled  to  their 
verdict,  unless  the  justification  had  been  sustained.  The  jury 
rendered  a  verdict  in  favor  of  the  plaintiff  for  six  cents  damages. 
The  plaintiff  moved  for  a  ncAv  trial  upon  a  case  and  exceptions. 

L.  T remain,  for  the  plaintiff. 

//  Hogehoom,  for  the  defendant. 

By  the  Court,  Harris.  J.  It  seems  to  have  been  assumed  upon 
the  trial,  that  the  article  published  by  the  defendant,  if  it  was 
intended  to  apply  to  the  plaintiff,  wa.s  libelous.  The  plaintiff 
had  expressly  averred  that  it  was  published  of  and  "fconcerning 
himself  He  had  proved  some  facts  tending  to  sustain  that 
averment.  Whether  or  not  the  matter  contained  in  the  publi- 
cation was  libelous,  was,  indeed,  a  question  for  the  decision  of 
the  court,  but  if  libelous,  it  was  for  the  jury,  and  not  the  court, 
to  say  whether  it  was  applicable  to  the  plaintiff. 

The  allegation  in  the  article  which  constitutes  the  allefred  libel 
is,  that  the  pauper  mentioned  died  from  the  want  of  proper  care 
and  attention.  The  charge  implies  that  somebody  had  been 
guilty  of  culpable  neglect.  Who  it  was  that  had  been  thus 
guilty,  cannot  be  ascertained  from  the  article  itself  The  judge 
was  right,  therefore,  when  he  said  that  "  the  article  did  not  point 
to  any  individual  in  particular."  No  one  by  reading  the  article, 
without  the  knowledge  of  any  other  facts,  would  suspect  that  it 
was  intended  to  censure  the  plaintiff,  more  than  any  other  per- 
son. Yet  the  plaintiff  insists  that  the  charge  of  neglect,  con- 
tained in  the  publication,  was  aimed  at  him.  and  at  no  one  else 


1 4  CASES  IN  THE  SUPPwEME  COURT. 

Green  v.   Telfair. 

To  show  this,  he  resorts  to  facts  which  do  not  appear  upon  the 
face  of  the  alleged  libel.  He  shows  that  he  was  the  keeper  of 
the  establishment  in  which  the  pauper  was  alleged  to  have  fro- 
zen to  death — that  its  government  and  general  superintendence 
was  committed  to  him — that  by  the  rules  and  regulations  which 
had  been  adopted  by  the  superintendents  of  the  poor  for  the  gov- 
ernment of  the  house,  it  had  been  declared  to  be  his  duty  as 
keeper  to  provide  seasonable  and  kind  attention  for  the  sick  and 
infirm,  and  to  make  them  comfortable.  Upon  such  evidence  the 
plaintiff  claimed  to  have  the  case  submitted  to  the  jury  upon 
the  question  whether,  when  the  defendant  published  the  article, 
he  did  not  intend  to  impute  to  the  plaintiff  the  blame  of  having, 
through  nefjlect,  caused  the  death  of  Mrs.  Southard.  I  think 
the  facts  proved  were  sufficient  to  carry  the  cause  to  the  jury 
upon  that  question.  What  their  verdict  might  have  been, 
it  is  unnecessary  to  conjecture.  It  is  enough,  upon  the  pres- 
ent occasion,  to  see  that  the  evidence  in  the  case  was  such  as 
would  have  warranted  the  jury  in  finding  that  the  censure,  so 
clearly  implied  in  the  article  published,  was  intended  for  the 
plaintiff. 

The  prcfvince  fo  the  court  as  well  as  the  jury,  in  cases  like 
this,  was  clearly  defined  in  Van  Vechten  v.  Hopkins,  (5  John. 
211.)  In  that  case,  it  was  charged  in  the  alleged  libel,  that  certain 
leading  federalists  had  entered  into  a  corrupt  coalition  with  the 
friends  of  Morgan  Lewis  to  elect  the  latter  governor.  There 
was  nothing  upon  the  face  of  the  publication  from  which  it  could 
be  seen  that  the  plaintiff  was  one  of  the  parties  intended.  But 
the  plaintiff  had  averred  that  the  publication  was  made  of  and 
concerning  himself,  as  well  as  other  citizens  of  the  state  belong- 
ing to  the  political  party  denominated  federalists,  and,  to  show- 
that  he  was  intended,  he  had  stated  in  his  declaration,  and  proved 
upon  the  trial,  certain  facts  Avhich  did  not  appear  upon  the  face 
of  the  alleged  libel.  The  cause  was  tried  before  Mr.  Justice 
Spencer,  who  decided,  as  the  learned  judge  who  presided  at  the 
trial  of  this  action  decided,  that  the  libel  itself  did  not  afford 
sufficient  evidence  that  the  plaintiff  was  intended.  A  new  trial 
was  gi  anted,  upon  the  ground  that  the  judge  at  the  circuit  had 


ALBANY— SEPTEMBER,  1854.  |  5 

Green  v.  Telfair. 
i 

erred  in  not  submitting  it  to  the  jury  to  say,  from  all  the  evi- 
dence in  the  case,  whether  it  was  not  intended  to  charge  the 
plaintiff  as  being  one  of  the  parties  to  the  agreement  set  forth 
in  the  publication.  "The  averment  of  extrinsic  matter  in  this 
declaration,"  said  Van  Ness  J.,  in  delivering  the  opinion  of  the 
court,  '•  was  for  the  purpose  of  showing  that  the  libel  w'as  pub- 
lished, as  it  is  expressly  alleged  to  have  been,  of  and  concern- 
ing the  plaintiff.  And  whether  it  was  so  'published  or  not,  is 
a  question  of  fact,  which  it  is  the  province  of  the  jury  and 
not  of  the  court  to  decide"  And  again  he  says,  " There  are 
cases  in  which,  as  in  the  case  now  under  consideration,  the 
words  in  themselves  amount  to  a  libelous  charge  upon  some  par- 
ticular person,  but  where  that  person  is  so  ambiguously  describ- 
ed as  that  without  the  aid  of  extrinsic  facts,  his  identity  cannot 
be  ascertained,  but  where,  by  the  introduction  of  proper  aver- 
ments and  a  colloquium,  the  words  may,  notwithstanding,  be 
rendered  suflSciently  certain  to  maintain  an  action.  The  cer- 
tainty is  arrived  at  by  taking  into  consideration  both  the  ex- 
trinsic facts  stated  in  the  averments  and  colloquium  and  the 
whole  of  the  libel,  all  of  Avhich  must  be  submitted  to  the  jury, 
under  the  direction  and  charge  of  the  judge,  as  in  other  cases." 
{See  also  1  Ath.  Leading  Cases,  Sd  ed.  138.) 

Upon  the  ground,  therefore,  that  it  was  error  to  withhold  from 
the  jury  the  decision  of  the  question  as  to  the  application  of 
the  article  published  by  the  defendant,  I  am  of  opinion  that  there 
should  be  a  new  trial. 

[Albany  General  Term,  September  4,  1854.  Wright,  Harris  and  Wat- 
ton,  Justices.] 


If}  CASES  IN  THE  SUPREME  COURT. 


Hager  and  wife  vs.  Danforth. 

Where  a  ijerson  goes  to  the  house  of  another,  for  the  purpose  of  serving  a  sub- 
poena upon  him,  and  the  latter  is  in  the  house  at  the  time,  these  circum- 
stances amount  to  a  legal  license  to  enter  :  and  if  the  person  having  the 
process  finds  the  outer  door  open,  and  enters  peaceably,  he  is  lawfully  there, 
and  may  use  such  force  as  is  necessary  to  overcome  any  resistance  he  may 
meet  with  in  the  service  of  the  subpoena ;  being  liable  only  for  an  excess  of 
violence,  beyond  what  is  necessary  to  overcome  the  resistance. 

The  fact  that  the -person  having  the  process  is  ordered  by  the  ^^■ife  of  the  paity 
sought  to  be  served,  to  leave  the  house,  will  not  render  him  a  trespasser  in 
proceeding  to  serve  the  subpoena 

APPEAL  from  an  order  made  at  a  special  term,  denying  a 
new  trial.  The  action  was  brought  to  recover  damages  for 
an  assault  and  battery  alleged  to  have  been  committed  upon 
Mrs.  Hager.  It  was  tried  at  the  Schoharie  circuit,  in  Septem 
ber,  1852,  before  Mr.  Justice  Wright.  It  appeared  upon  the 
trial,  that  in  August,  1851,  a  suit  was  pending  before  Henrj 
R.  Briggs,  esquire,  a  justice  of  the  peace,  in  which  the  defendant 
in  this  action  was  plaintiff  and  the  plaintiff,  Daniel  J.  Hager,  was 
defendant.  On  the  day  upon  which  the  suit  was  to  be  tried,  the 
defendant  Danforth  procured  from  the  justice  a  subpoena  for 
the  plaintiff  Hager,  and  proceeded  to  his  .house  for  the  purpose 
of  serving  the  same.  Finding  the  kitchen  door  open,  he  enter- 
ed, but  was  met  and  resisted  by  Mrs.  Hager.  Hager  was  up 
stairs  at  the  time,  lathing.  The  defendant,  in  attempting  to 
force  his  way  to  the  stairs,  against  the  resistance  of  the  wife, 
choked  her  and  threw  her  back  against  the  catch  of  a  door,  and 
slightly  bruised  her.  When  the  defendant  first  entered,  Mrs. 
Hager  ordered  him  out  of  the  house,  and  he  replied  that  he 
had  a  subpoena  to  serve  on  Hager,  and  pressed  on  towards  the 
door  leading  to  the  chamber.  At  length  the  husband  came 
down  stairs,  and  the  defendant  served  the  subpoena  upon  him, 
and  soon  after  left  the  house.  The  judge  charged  the  jury 
that  a  license  to  enter  the  house  for  the  purpose  of  serving  the 
subpoena  was  to  be  implied,  but  that,  "afle''  Mrs.  Hager  had 
ordered  the  defendant  out,  the  suhpcena  was  not  a  justijjca- 
iion  or  protection  to  him  in  pressing  forward  and.  when  resist- 


ALBANY— SEPTEMBER,  1854.  {7 

Hager  v.  Danforth. 

cd  in  his  advance,  tising  force  to  serve  it."  To  this  part  of 
the  charge,  the  defendant's  counsel  excepted.  The  jury  found 
a  verdict  in  favor  of  the  plaintiff  for  $250.  The  defendant, 
upon  a  case,  moved  at  a  special  term,  for  a  new  trial,  which  mo- 
tion was  denied.  From  the  order  denying  a  new  trial,  he 
brought  an  appeal  to  the  general  term. 

L.  Tremain,  for  the  plaintiffs. 

H.  Hogeboom,  for  the  defendant. 

By  the  (hurt,  Harris,  J.  The  defendant  went  to  the  plain- 
tiff's house  with  process  which  he  was  authorized  by  law  to 
serve.  (2  R.  S.  240,  §  82.)  The  person  upon  whom  he  was 
to  make  the  service,  was  in  the  house.  These  facts  amounted 
to  a  legal  license,  and,  having  found  the  door  open,  and  entered 
peaceably,  the  defendant  was  lawfully  there.  Deriving  his 
authority  to  be  there  from  the  law.  and  not  from  the  consent  of 
the  plaintiffs,  he  was  under  no  obligation  to  obey  Mrs.  Hager 
when  she  ordered  him  to  leave.  Not  having  conferred  upon 
him  his  license,  she  had  no  power  to  revoke  it.  He  was  as 
rightfully  there  after  he  had  been  directed  to  leave,  as  before. 
I  know  of  no  duty  which  bound  him  to  desist  from  the  execu- 
tion of  the  lawful  purpose  which  had  brought  him  there.  If 
his  taste  led  him  to  encounter  the  vituperation  and  violence  of 
such  a  woman  as  he  met  there,  it  was  his  right  to  do  so.  To 
the  extent,  therefore,  that  the  force  used  by  the  defendant  was 
necessary  to  overcome  the  unlawful  resistance  he  met  in 
the  service  of  the  subpoena,  it  was  lawful.  Mrs.  Hager  was 
the  wrongdoer,  and  not  the  defendant.  If  he  used  more  force 
than  was  necessary  to  enable  him  to  accomplish  his  purpose,  to 
that  extent  he  is  liable  as  a  wrongdoer. 

•The  jury  were  led  to  understand,  upon  the  trial,  that  after 
Mrs.  Hager  had  ordered  the  defendant  out,  the  subpoena 
furnished  him  no  justification  or  protection.  In  effect,  they 
were  instructed  that  by  remaining,  after  having  been  ordered  to 
leave,  the  defendant  became  a  trespasser.  In  this,  they  were 
Vol.  XX.  3 


IQ  CASES  IN  THE  SITPREME  COURT. 


Cole  V.  MoffiU. 


misled,  and    the    result  was  a  verdict   against  the  defendant  to 
an  amount  entirely  unwarranted  by  the  evidence. 

The  jury  ought  to  have  been  told  that,  inasmuch  as  the  de- 
fendant had  entered-  the  house  in  a  peaceable  manner,  under  a 
license  given  him  by  law,  he  had  a  right  to  remain  there  until  he 
had  effected  the  service  of  the  subpoena  ;  that  Mrs.  Hager,  by 
resisting  the  defendant  in  making  such  service,  Avas  herself 
guilty  of  an  unlaAvful  act,  and  that  the  defendant  was  justified, 
notwithstanding  such  resistance,  in  using  all  the  force  neces- 
sary to  enable  him  to  serve  the  subpoena,  and  that  he  w^as  only 
liable  for  any  excess  of  violence  used  by  him  more  than  was 
necessary  to  overcome  the  resistance  with  which  he  met.  I  am 
of  opinion,  therefore,  that  the  order  of  the  special  term  should 
be  reversed,  and  that  a  new  trial  should  be  granted,  with  costs 
to  abide  the  event. 


[Albany  General  Term,  September  4,  1854.     Wright,  Harris  and  Watson, 
J  iistices.]  , 


Cole  vs.  Moffitt. 

fpoT-  the  foreclosure  of  a  mortgage  by  advertisement  and  sale  under  the  statute, 
a  copy  of  the  notice  of  sale  must  be  served  upon  the  mortgagor,  if  he  is  liv- 
ing, or  upon  his  personal  representatives  if  dead ;  otherwise  there  can  be  no 
valid  foreclosure. 

:  If  the  party  alleging  the  validity  of  the  proceedings  would  show  an  excuse  for 
not  serving  the  mortgagor  with  notice,  he  must  prove  the  death  of  tlie  mort- 
gagor, by  legal  evidence,  and  not  by  mere  hearsay  or  i-eputation 

TI^IIIS  action  was  brought  to  recover  the  possession  of  certain 
•J.  real  estate  situate  in  the  town  of  Stephcntown,  in  the  county 
of  Rensselaer.  It  was  tried  at  the  Rensselaer  circuit,  in  Febru- 
ary, 1853,  before  Mr.  Justice  Parker.  The  plaintiff  claimed  title 
to  the  premises  under  a  statute  foreclosure  of  a  mortgage  exe- 
cuted by  Israel  A.  Adams.     Subsequent  to  the  execution  of  the 


ALBANY— SEPTEMBEPw,  1854.  J  9 

Cole  r.  Moffitt. 

mortgage,  Adams  had  conveyed  the  premises  to  Ralph  Moffitt 
whose  interest  had  been  sold  under  a  judgment  against  him  and 
purchased  by  the  defendant. 

The  plaintiff  gave  in  evidence  a  notice  of  sale,  in  the  usual 
form,  stating  that  the  premises  would  be  sold  by  virtue  of  the 
power  contained  in  the  mortgage,  at  the  court  house  in  Troy,  on 
the  2d  day  of  November,  1850,  and  proved  the  publication  of 
the  notice  in  a  newspaper,  printed  in  the  county,  once  a  week 
for  twQJve  weeks.  Also  that  the  original  notice  together  with 
a  notice  of  the  postponement  of  the  sale  until  the  30th  of  No- 
vember, 1850,  which  last  notice  bore  date  the  first  day  of  No- 
vember, 1850,  was  published  in  the  same  paper.  Also,  that  the 
original  notice  and  the  notice  of  postponement,  and  a  second 
notice  stating  that  the  sale  had  been  postponed  until  the  22d 
day  of  March,  1851,  which  last  notice  bore  date  the  24th  day  of 
December,  1850,  had  been  published  "  according  to  law  up  to  the 
22d  of  March,  1850." 

The  plaintiff  also  gave  in  evidence  the  affidavit  of  the  attor 
ney  who  conducted  the  proceedings  upon  the  foreclosure,  stating 
that,  on  the  24th  day  of  December,  1850,  he  affixed  a  copy  of  the 
notice,  and  of  the  several  notices  of  postponement,  upon  the  outer 
door  of  the  court  house.  Also,  another  affidavit  of  the  attorney 
stating  the  facts  attending  the  sale,  from  which  it  appeared  that 
the  premises  were  sold  on  the  22d  day  of  March,  1851,  and  that 
Charles  Cole  became  the  purchaser.  Also,  another  affidavit  of 
the  attorney,  shoAving  the  service  of  a  copy  of  the  original  no- 
tice, and  the  several  notices  of  postponement,  upon  the  de- 
feniiarit,  by  mailing  the  same  on  the  first  day  of  February, 
1851. 

There  was  no  proof  of  the  service  of  any  notice  upon  Adams, 
the  mortgagor.  The  attorney  testified  that  he  made  inquiries 
for  him,  and  was  informed  by  several  persons  in  Stephentown 
that  he  had  gone  to  Illinois,  and  had  died  there  ;  that  he  thought 
he  had  inquired  of  George  W.  Glass  and  Dwight  Piatt,  but  was 
not  positive  that  he  had  inquired  of  either.  The  counsel  for 
the  defendant  objected  to  the  proof  of  the  death  of  Adams  by  hear- 
say, and  also  to  the  proof  of  such  death  in  the  manner  the  plaintiff 


20  CASES  IN  THE  SUPREME  COL'KT 


Cole  V.  'Moffif 


was  seeking  to  prove  it.  The  objection  was  overruled,  and  tie  de* 
fendant's  counsel  excepted.  The  testimony  being  closed,  the 
court  decided  that  the  plaintiff  was  entitled  to  recover,  and  the 
iefendant  excepted.  Judgment  having  been  entered  upon  the 
decision,  the  defendant  appealed  to  the  general  term 

M.  I.  Townsend,  for  the  plaintiiF: 

J.  H.  Reynolds,  for  the  defendant.  ^ 

By  the  Court,  Harris,  J.  The  original  notice  of  sale  was 
entirely  ineffectual  for  any  purpose  connected  with  the  foreclos- 
ure. It  may  be,  that  the  republication  of  the  notice  ^^  ith  the 
several  notices  of  postponement,  for  twelve  weeks  preceding 
the  day  of  sale,  would  be  a  sufficient  compliance  with  the  re- 
quirement of  the  statute.  I  am  inclined  to.  think  it  would 
Disregarding  all  that  had  been  done  prior  to  the  24th  of  De- 
cember, and  regarding  the  notice,  as  it  was  then  published,  as 
the  commencement  of  the  proceedings,  I  think  enough  may  be 
found  in  that  notice,  however  awkward  and  unseemly  it  may 
appear,  to  meet  the  requirements  of  the  statute.  This  notice, 
too,  was  affixed  upon  the  outward  door  of  the  court  house,  and 
thus  another  requirement  of  the  statute  was  met. 

But,  even  if  the  notice  as  published  on  and  after  the  24th  of 
December,  and  the  affixing  of  a  copy  of  this  notice  in  tlie  man- 
ner specified,  were  sufficient,  there  is  still  another  ingredient  in 
a  valid  statute  foreclosure  which  is  not  to  be  found  in  these 
proceedings.  There  was  no  attempt  to  serve  a  copy  of  the  jio- 
tice  upon  the  mortgagor.  Without  such  service,  in  the  manner 
prescribed  by  the  legislature,  if  he  was  living,  there  could  be 
no  valid  foreclosure.  (-S'ee  Van  Sly/ce  v.  Shelden,  9  Barb.  278. 
King  V.  Duntz,  11  Barb.  191.)  The  plaintiff  sought  to  obvi- 
ate this  objection  by  proving  that  the  attorney  who  conducted 
the  proceedings  had  made  inquiries  for  the  mortgagor,  and  had 
been  informed  that  he  was  dead.  If  the  death  of  the  mortgagor 
had  been  proved,  the  objection  to  the  validity  of  the  proceedings 
would  have  been  removed,  unless  it  had  further  appeared  that 


ALBANY  -DECEMBER,  1854.  21 


Orr  V.  Bigelow. 


he  had  f.ersonal  representatives.  But  there  was,  in  fact,  no 
evidence  at  all  of  the  death  of  the  mortgagor.  Even  if  it  had 
been  competent  to  prove  such  death  "by  reputation,  the  inquiries 
and  information  of  which  the  attorney  speaks,  furnish  no 
evidence  of  such  reputation.  But,  in  this  case,  it  was  not 
competent  to  prove  such  death  by  hearsay.  There  were  no  cir- 
cumstances to  render  such  secondary  evidence  admissible.  The 
death  of  the  mortgagor,  if  the  party  alleging  the  validity  of  the 
proceedings  would  show  an  excuse  for  not  serving  him  with 
notice,  should  have  been  proved  by  legal  evidence  of  the  fact, 
and  not  by  mere  hearsay  or  reputation.  [Fosgate  v.  Herki- 
mer Man.  <S^  Hydraulic  Co.  12  Barb.  352.)  If  upon  a  new  trial 
the  plaintiff  should  be  able  to  establish  this  fact,  and  there  were 
no  personal  representatives  of  the  mortgagor  upon  whom  the 
notice  could  have  been  served,  he  may  j-et  succeed  in  the  ac- 
tion ;  but  the  judgment  must  be  reversed  and  a  new  trial  grant- 
ed, with  costs  to  abide  the  event. 

[Albany  General  Term,  September  4, 1854.     Wright,  Harris  ami  Watson, 
Jtuttioes.] 


Orr  and  others  vs.  Bigelow. 

The  plaintiffs  agi'eed  with  the  defendant  that  they  would  subscribe  lor,  and  be- 
come responsible  to  take  fifty  shares  of  the  capital  stock  of  the  Troy  and 
Boston  Rail  Road  Company,  of  the  estimated  value  of  ?^5000,  and  to  pay 
$500  upon  the  subscription.  They  further  agreed,  after  having  paid  theS'SOO, 
to  assign  and  transfer  to  the  defendant,  by  a  proj>er  instrument  of  conveyance, 
all  the  said  stock,  &c.  The  defendant,  in  consideration  thereof,  agreed  that 
after  the  plaintiffs  should  have  paid  the  sum  of  S500,  and  upon  their  execut- 
ing and  delivering  to  him  "an  assigment  or  transfer  of  all  said  stock,"  he 
would  execute  and  deliver  to  them  a  covenant  to  pay  tlie  remainder  of  the 
amount  which  would  be  due  upon  the  subscription,  and  indemnify  tlie  plain- 
tiffs and  save  them  harmless  against  all  claims,  &c.  arising  in  consequence  of 
their  liability  incurred  by  becoming  stockholders  in  the  said  company.  The 
plaintiffs,  in  pursuance  of  this  agreement,  executed  and  tendered  to  the  do-  , 
feadant  an  assignment  of  50  shares  of  the  capital  stock  of  the  rail  road  com 


22  CASES  m  THE  SUPREME  COURT. 

Orr  V.  Bigelow. 

pan}-,  which  they  had  previously  suhsciibed  for,  and  on  which  they  had  ]iaid 
$600,  and  also  a  power  of  attorney  to  transfer  the  stock  on  the  hooks  of  the 
company.  The  by-laws  of  the  company  provided  that  no  stock  should  bo 
transferred  on  the  books  of  the  corporation  until  thirty  per  cent  on  each  share 
had  been  paid  in,  unless  by  consent  of  the  board  of  directors.  The  plaintifl's 
made  application  for  such  consent,  and  it  was  refused.  The  defendant  declined 
accepting  the  assignment,  on  the  ground  that  it  was  not  a  compliance  with  the 
terms  of  the  agreement.  The  company  sued  the  plaintiffs  to  recover  the  bal- 
ance of  their  subscription,  and  obtained  a  J\idgment  for  $4600.85,  which  the 
plaintiffs  paid.  At  the  time  the  assignment  of  the  stock  was  tendered,  and  at 
the  time  of  the  trial,  the  stock  was  worth' from  40  to  43  cents  on  the  dollar. 
field  1.  That  it  was  enough  that  the  plaintiffs  had  executed  an  instrument  which 
would  transfer  their  interest  in  the  stock  to  the  defendant ;  it  being  no  part  of 
their  agrsement  that  they  should  procure  a  transfer  of  the  stock  upon  the 
hooks  of  th3  company. 

2.  That  the  instrument  executed  by  the  plaintiffs  would  enable  the  defendant,  if 
he  desired  it,  to  have  the  transfer  made,  ujjon  the  books  of  the  corpoi-ation, 
upon  complying  with  its  by-laws.  And  that  it  was  for  him,  and  not  the  plain- 
tiffs, to  pay  the  residue  of  the  30  per  cent  required  before  a  transfer  upon  the 
books  could  be  obtained. 

3.  That  having  an  instrument  which  would  authorize  him  to  procure  such 
transfer  to  be  made,  upon  making  the  requisite  payment,  it  did  not  lie  with 
the  defendant  to  object  that  the  transfer  had  not  been  actually  made. 

4.  That  the  amount  which  the  plaintiffs  had  been  compelled  to  pay,  upon  the 
judgment  against  them,  as  the  consequence  of  the  defendant's  breach  of  his 
agreement,  was  the  proper  measure  of  the  plaintiffs'  recovery  for  such  breacli. 

APPEAL  from  a  judgment  rendered  at  the  circuit.  The 
action  was  tried  at  the  Rensselaer  circuit,,  in  February, 
1853,  l)efore  Mr.  Justice  Parker,  without  a. jury.  Upon 
the  trial,  the  phiintiffs  gave  in  evidence  an  agreement  between 
them  and  the  defendant,  bearing  date  the  18th  of  May,  1849, 
A\  hereby  the  plaintiifs  agreed  to  subscribe  for  and  become  re- 
sponsible to  take,  fifty  shares  of  the  capital  stock  of  the  Troy 
and  Boston  Rail  Road  Company,  which  would  be  of  the  estimated 
value  of  $5000,  and  for  which  they  would,  by  their  subscrip- 
tion, become  responsible  to  pay  that  amount,  and  they  agreed 
to  pay  $500  upon  the  subscription.  They  further  agreed,  after 
having  paid  the  $500  upon  their  subscription,  to  assign  and 
transfer  to  the  defendant  by  a  proper  instrument  of  conveyance 
all  the  said  stock,  or  the  interest  they  should  have  acquired 
therein,  and  the  defendant,  in  consideration  thereof,  agreed  with 


ALBANY— DECEMBER,  1854.  23 

Oir  V.  Bigelow". 

the  plaintiifs,  that  he  would,  after  they  should  have  paid  the 
sum  of  $500,  and  upon  their  executing  and  delivering  to  him 
an  assignment  or  transfer  of  all  said  stock,  execute  and  deliv- 
er, to  the  plaintiffs,  a  covenant  to  pay  the  remainder  of  the 
amount  which  would  be  due  upon  the  subscription,  as  the  same 
should  become  due  and  payable,  and  indemnify  and  save  harm- 
less the  plaintiffs,  of,  from  and  against  all  claims  and  demands, 
actions  and  rights  of  action,  arising  from  or  made  in  conse- 
quence of  their  liability  incurred  by  becoming  stockholders  in 
the  said  company. 

The  plaintiffs  also  proved  that,  on  the  13th  of  August,  1850, 
they  executed  and  tendered  to  the  defendant  an  assigment  of 
the  fifty  shares  of  the  capital  stock  of  the  Troy  and  Boston 
Rail  Road  Company  subscribed  for  by  them  in  pursuance  of 
the  agreement  of  the  18th  of  May,  1849,  subject  to  the  calls 
thfereon  made  and  to  be  made,  to  the  amount  of  $4500,  and 
also  a  power  of  attorney  to  transfer  the  stock  on  the  books  of 
the  company,  pursuant  to  the  by-laws  of  the  company.  It  also 
appeared  that,  by  the  by-laws  of  the  company,  it  was  declared 
that  no  stock  should  be  transferable  on  the  books  of  the  cor- 
poration until  thirty  per  cent  on  each  share  had  been  paid  in, 
unless  by  consent  of  the  board  of  directors ;  and  that  the  plain- 
tiffs had  made  application  for  such  consent  and  it  had  been 
refused.  The  defendant  refused  to  accept  the  assignment  when 
tendered  to  him,  on  the  ground  that  it  was  not  a  compliance 
with  the  terms  of  the  agreement. 

The  company,  having. sued  the  plaintiffs  to  recover  the  bal- 
ance of  the  subscription,  obtained  a  judgment  against  them, 
in  June,  1851,  for  $4690.85,  which  judgment  the  plaintiffs  paid. 
At  the  thne  the  assignment  of  the  stock  was  tendered  by  the 
plaintiffs  to  the  defendant,  and  at  the  time  of  the  trial,  the 
stock  was  worth  from  40  to  43  cents  yi  the  dollar. 

The  defendant  insisted,  upon  the  trial,  1.  That  the  agreement 
of  the  18th  of  May,  1849,  contemplated,  and  that  he  had  a 
right  to  exact,  such  a  transfer  of  the  stock  as  would  invest  the 
defendant  with  all  the  rights  of  the  plaintiffs  to  control  the 
stock  and  become  a  stockholder  of  the  company ;  that  the  plaiit- 


24  CASES  IN  THE  SUPREME  COURT. 

Orr  V.  Bigelow. 

tiffs  covenanted  for  such  transfer,  and  the  refusal  of  the  direct- 
ors to  permit  such  transfer,  was  no  excuse  for  tlie  phiintiffs  Ml- 
ing  to  perform  their  covenant ;  and  that  the  assignment  tender- 
ed did  not  invest  the  defendant  with  the  rights  of  the  pkintiffs 
as  stockhohlers  iri  the  Jroy  and  Boston  Rail  Road  Company 
2.  That  if  the  plaintiffs  were  entitled  to  recover  at  all,  they' 
were  entitled  to  recover  only  the  difference  between  the  amount 
paid  by  them,  with  interest,  and  the  value  of  the  stock.  The 
court  decided  that  the  plaintiffs  were  entitled  to  recover  the 
amount  of  the  judgment  recovered  against  them,  and  the  inter 
est  thereon,  and  that  upon  being  paid  such  amount  they  should 
transfer  the  stock  to  the  defendant.  Judgment  was  perfected 
upon  this  decision,  on  the  18th  of  October,  1853,  for  $5617.59. 
and  the  defendant  appealed  to  the  general  term. 

D.  Buelfjiiti.  for  the  plaintiffs. 

4.  B.  Olin,  for  the  defendant. 

Bpthe  Court,  Harris,  J.  The  plaintiffs  agreed  to  subscribe 
for  the  stock  in  question  and  pay  ten  per  cent  thereon,  and  then 
to  assign  and  transfer  it  to  the  defendant  by  a  proper  instru- 
ni&nt  of  conveyance.  The  instrument  tendered  to  the  defend- 
ant on  the  13th  of  August,  was,  in  the  language  of  tlie  con- 
tract, a  proper  instrument  of  conveyance.  Its  effect  was,  to 
"  assign  and  transfer  to  the  defendant  all  the  interest  which  the 
plaintiffs  had  acquired  in  the  stock  by  their  subscription  and 
the  payment  of  $500.''  This  was  all  they  had  stipulated  to  do. 
It  was  no  part  of  their  engagement  that  they  should  procure 
a  tranfer  of  the  stock  upon  the  books  of  the  company-*  It  was 
enough  that  they  had  executed  an  instrument  whicli  would 
transfer  their  interest  to  the  defendant.  That  instrument 
would  enable  the  defendant,  if  he  desired  it,  to  have  the  trans- 
fer made  upon  the  books  of  the  corporation,  upon  complying 
with  its  by-laws.  It  was  for  him,  and  not  the  plaintiffs,  to  pay 
the  residue  of  the  30  per  cent  required  before  a  transfer 
upon  the   books    could    be   obtained.     Having   an    instrument 


ALBANY— DECEMBER,  18o4.  25 

Orr  V.  Blgelow. 

wlilch  would  authorize  him  to  procure  sucli  transfer  to  be  made, 
upon  making  the  requisite  payment,  it  does  not  He  with  him  to 
object  that  the  transfer  had  not  been  actually  made. 

I  think,  too,  that  the  proper  measure  of  damages  "was  adopt- 
ed at  the  circuit.  The  plaintiffs  had  subscribed  for  the  stock 
under  their  agreement  with  the  defendant.  Tliey  had  paid  the 
ten  per  cent  they  had  stipulated  to  pay,  and  had  executed  a  suf 
ficient  assignment  of  the  stock  and  tendered  it  to  the  defend- 
ant. The  defendant  had  refused  to  accept  the  assignment,  with- 
out- sufficient  cause.  This  tender  and  refusal  must  be  regarded 
as  equivalent  to  a  performance,  on  the  part  of  the  plaintiffs, 
of  their  agreement  to  assign  the  stock.  It  then  became  the 
duty  of  the  defendant,  the  plaintiffs  having  done  all  that  was 
required  of  them,  to  pay  the  remaining  ninety  per  cent  upon 
the  stock  and  to  protect  the  plaintiffs  against  further  liability. 
His  omission  to  discharge  this  duty  has  subjected  the  plaintiffs 
to  the  payment  of  the  judgment  recovered  against  them  for  the 
balance  of  the  subscription  price  of  the  stock.  The  amount 
which  they  have  thus  been  compelled  to  pay,  as  the  consequence 
of  the'  defendant's  breach  of  his  agreement,  constitutes  the 
proper  measure  of  the  plaintiffs'  recovery  for  such  breach. 

The  situation  of  the  defendant  is  not  very  unlike  that  of  one 
who,  having  employed  a  mechanic  to  construct  an  article,  after- 
Avards  refuses  to  accept  it.  The  tender  of  the  article  and  the 
refusal  to  accept,  in  reference- to  an  action  by  the  mechanic  for 
the  price  of  the  article,  are  equivalent  to  a  delivery^  and  the 
mechanic,  though  he  still  have  the  property  in  his  hands,  may 
recover  of  his  employer  the  full  price.  {Bement  v.  Smith, 
15  Wend.  493.  Sedg.  oti  Bam.  282.)  The  plaintiffs  had 
by  their  subscription  and  the  payment  of  $500,  brought  the  stock 
into  existence.  They  had  done  this,  too,  upon  the  employment 
of  the  defendant.  The  defendant  Avas  bound  to  accept  it,  when 
tendered,  and  to  pay  for  it  according  to  the  terms  of  the  con- 
tract. The  proper  assignment  was  tendered  and  refused.  This 
furnished  a  sufficient  foundation  for  an  action  to  recover  the  con- 
tract price,  which  Avas  ninety  per  cent,  payable  as  the  same 
should  become  due  and  payable  to  the  company.     The  plaintiffs 

Vol.  XX.  4 


26  CASES  IN  THE  SUPREME  COURT. 

Groat  V.  Rees. 

were  under  no  obligation  either  to  sell  the  stock  and  credit  the 
defendant  witlj  the  proceeds,  or  to  become  the  purchasers  of  it 
tnemselves.  They  held  it  for  the  defendant,  and  their  only  duty 
in  respect  to  it  was,  to  assign  it  to  him  upon  request. 

The  provision  in  the  judgment  that  upon  the  payment 
or  collection  of  the  amount  recovered  by  the  plaintiffs  they 
should  transfer  the  stock  to  the  defendant,  may  be  useless,  but  it 
is  also  harmless.  It  merely  declares  what  would  have  been  the 
duty  of  the  plaintiffs  without  any  such  direction.  At  any  rate, 
being  a  provision  for  tlie  benefit  of  the  defendant,  it  is  not  for 
him  to  complain.  He  is  not  obliged  to  enforce  it.  The  judg- 
ment should  therefore  be  affirmed. 


[Albany  General  Term,  December  4,  1854.     Wright,  Harris  and  Watson 
Justices.] 


Groat  vs.  Rees. 

Before  a  chattel  mortgage  can  be  upheld  as  a  valid  security,  where  there  has  been 
no  actual  and  continued  change  of  possession,  the  party  asserting  its  validity 
must  establish',  affirmatively,  two  propositions  ;  first,  that  the  transaction  was 
hona  fide ;  and,  secondly,  that  there  was  no  intention  to  defraud  creditors  or 
purchasers. 

It  is  not  enough  to  show  that  the  mortgage  was  given  for  a  good  and  valid  con- 
sideration.    It  is  equally  necessary  to  prove  the  absence  of  a  fraudulent  intent 

But,  where  it  is  admitted  that  the  mortgage  was  given  for  a  good  and  valid  con- 
sideration, it  is  proper  to  submit  the  question  to  the  jury  whether  it  was  no^ 
also  executed  without  any  intent  to  hinder  or -delay  creditors. 

And  if  there  is  no  evidence  that  the  mortgagor  was  indebted  to  any  other  persor 
than  the  mortgagee,  and  there  is  nothing  in  the  case  to  show  that  the  mort- 
gage was  executed  for  any  other  purpose  than  to  secure  a  bona  fide  debt,  tin 
jury  will  be  justified  in  finding  in  favor  of  the  validity  of  the  mortgage. 

APPEAL  from  a  judgment  of  the  Schenectady  county  court 
The  action  was  brought  before  a  justice  of  the  peace.     The 
plaintiff  claimed  to  recover   the  value  of  a  horse,  which  bad 


ALBAINY— DECEMBER,  1854.  27 


Groat  V.  Rees. 


been  wrongfully  taken  from  him  by  the  defendant.  On  the 
trial  it  appeared  that  the  horse  had  been  owned  by  one  Sittcrly, 
who  had,  on  the  9th  of  August,  1852,  mortgaged  him  to  the 
plaintiff  to  secure  forty  dollars,  with  interest,  payable  in  thirty 
days,  and  that  the  mortgage  had  been  filed  in  the  proper  office. 
Sitterly  retained  the  possession  of  the  horse  until  some  time  in 
the  Avinter  or  spring  after  the  execution  of  the  mortgage,  when 
he  sold  him,  and,  after  passing  througli  the  hands  of  several 
owners,  he  came  into  the  possession  of  the  defendant.  It  was 
admitted  that  the  mortgage  was  given  for  a  good  and  valid  con- 
sideration. The  justice  rendered  a  judgment  for  the  plaintiff 
for  $18.88  damages  and  costs.  From  this  judgment  the  defend- 
ant appealed  to  the  county  court,  and  that  court  reversod  the 
judgment.     The  plaintiff  appealed  to  this  court. 

Thomas  Smith,  for  the  plaintiff. 

C.  B.  Cochrane,  for  the  defendant. 

By  the  Court,  Harris,  J.  The  plaintiff  claimed  the  horse 
in  question  as  mortgagee.  The  defendant  claimed  title  as  a 
subsequent  purchaser  in  good  faith.  Upon  the  execution  of  the 
.mortgage,  there  was  no  change  of  possession.  The  mortgagor 
continued  in  possession  of  the  horse  until  it  was  sold.  Upon 
this  state  of  facts  the  law  declared  the  mortfjajre  void  as  against 
the  defendant,  unless  upon  the  trial  the  plain.tiff  could  make  it 
appear  "  that  the  mortgage  was  made  in  good  faith,  and  without 
any  intent  to  defraud  the  creditors  of  the  mortgagor  or  subse- 
quent purchasers  in  good  faith."  (2  R.  S.  136,  §  5.)  Before 
the  mortgage  could  be  upheld  as  a  valid  security,  the  plaintiff 
was  required  tO'  establish,  affirmatively,  two  propositions  :  first, 
that  the  transaction  between  the  parties  to  the  mortgage  was 
bona  fide,  and  then,  that  there  was  no  intention  to  defraud  cred- 
itors or  purchasers.  It  was  not  enough  to  show  that  the  mort- 
gage was  given  for  "a  good  and  valid  consideration."  It  was- 
equally  necessary  to  prove  the  absence  of  a  fraudulent  intent. 
It  has  been  well  said,  that   these  are  distinct  and  independent 


28  OASES  IN  THE  SUPEEME  COURT. 

Groat  V.  Kees. 

facts,  and  that  the  proof  of  the  one  in  no  de^rree  alters  or  less- 
ens the  obligatien  of  proving  the  other.  (^Randall  v.  Par  her, 
3  Sandf.  S:  C.  R.  69.) 

But  while  it  is  necessary  to  prove  both  facts,  in  order  to  up- 
hold the  mortgage,  the  same  evidence  which  establishes  the  one 
may  also  be  pertinent  with  reference  to  the  other.  I  cannot 
•say  that  in  this  case  the  admitted  fact  that  the  mortgage  was 
executed  upon  a  good  and  valid  consideration  did  not  tend  to 
prove  the  absence  of  a  fraudulent  intent.  I  think  it  did.  I 
should  not  feel  at  liberty  to  withhold  such  testimony  from  the 
consideration  of  a  jury. 

I  am  aAvare  that  in  Randall  v.  Parher,  above  cited,  where 
Mr.  Justice  Duer  has  discussed  the  subject  with  admirable  abil 
at}^  and  clearness,  the  opinion  is  expressed  that  even  where  the 
evidence  is  sufficient  to  show  good  faith  in  the  transaction,  the 
eourt  might  direct  a  verdict  for  want  of  evidence  to  rebut  the 
presumption  of  fraudulent  intent.  The  q*uestion  was  not  before 
the  court  for  judgment,  and  I  am  persuaded  that,  upon  consid- 
eration, the  position  would  not  be  insisted  on,  even  by  that  en- 
lightened judge  himself  Though  the  statute  requires  the  party 
who  asserts  the  validity.of  a  sale  or  mortgage  unaccompanied 
by  a  change  of  possession,  to  prove  both  the  good  faith  of  the 
transaction  and  the  absence  of  any  fraudulent  intent,  yet  it  is 
not  quite  easy  to  conceive  of  a  case  where  there  has  been  en- 
tire good  faith  between  the  parties,  which  is,  nevertheless,  taint- 
ed with  fraud.  At  the  least,  the  evidence  of  good  faith  furnishes 
some' proof  to  be  submitted  to  a  jury,  upon  the  question  of 
fraudulent  intent.  In  some  cases,  as  where  a  mortgage  is  exe- 
cuted  to  secure  a  loan  of  money  made  at  the  time,  and  where 
the  transaction  is  unattended  with  any  circumstances  of  sus- 
picion, the  same  evidence  which  proves  good  faith  might  also 
be  satisfactory  upon  the  question  of  fraudulent  intent.  .  In  the 
case  under  consideration,  when  the  plaintiff  proposed  to  give 
evidence  to  show  the  consideration  of  the  mortgage,  the  defend- 

Co? 

ant  waived  the  necessity  of  such  evidence  by  admitting  that  the 
mortgage  was  given  for  a  good  and  valid  consideration.  In 
«flfect,  it  was   admitted   that   the  mortgage  was  given  in  good 


ALBANY— DECEMBER.  1854.  29 

Cutwater  v.  Nelson.  ' 

faith.  Can  it  be  said  that  such  an  admission  has  no  bearing 
upon  the  question  of  fraudulent  intent?  or,  rather,  was  not  the 
jury  ^Yho  tried  the  case  before  the  justice,  justified  in  finding, 
from  this  very  fact,  that  the  mortgage  was  also  executed  with- 
out any  intent  to  hinder  or  delay  creditors  ?  There  was  no 
evidence  that  the  mortgagor  was  indebted  to  any  other  per- 
son than  the  plaintiff.  There  is  nothing  in  the  case  to  show 
that  the  mortgage  was  executed  for  any  other  purpose  than  to 
secure  a  bona  fide  debt.  Under  these  circumstances,  I  am  of 
opinion,  not  only  that  the  question  was  properly  submitted  to 
the  jury,  but  that  the  verdict  is  sustained  hj  the  evidence.  The 
judgment  of  the  county  court  should,  therefore,  be  reversed, 
and  that  of  the  justice  affirmed. 

[Albany  General  Term,  Deqpinbor  4,  1854.     Wright,  Hcfj-ris  and  Wat- 
son, Justices.l 


OuTWATERj  plaintiff  in  error,  vs.  Nei;,son,  defendant  in  error 

la  an  action  npon  a  memorandum  acknowledging  the  receipt  of  a  quantity  of 
corn  in  store,  "  on  freight,"  the  defendant  offered  to  prove  that  it  was  the  cus- 
tom, at  the  landing  where  the  corn  was  delivered,  and  had  been  for  forty  years, 
to  pay  for  grain  left  on  freight %fler  the  owner  had  ordered  it  to  be  freighted, 
and  not  before  ;  and  that  tliis  custom  was  known  to  the  plaintiff,  and  that  he 
himself  had  been  in  the  habit,  for  many  years,  of  leaving  grain  at  that  place, 
te  be  freighted,  upon  the  same  terms.  Held  that  the  evidence  should  have 
been  received ;  and  for  its  rejection  the  judgment  was  reversed. 

Held  also,  that  the  plaintiff  could  not  recover,  upon  such  tnemorandum,  without 
proving  that  the  defendant  had  shipped  the  corn,  or  that  he  had  been  called 
upon  for  j)ayment. 

ERROR  to  the  Dutchess  common  pleas.  The  action  was  com- 
menced before  a  justice  of  the  peace,  in  April,  1843.  The 
plaintiff  claimed  to  recover  upon  two  receipts,  one  of  which  was 
nS  follows  :  "  February  22,  1839.  Received  in  store.  Red  Hook 
Landing,  of  Samuel  Nelson,  by  self,  50f^  bus.  corn  on  freight 


CASES  IX  THE  SUPREME  COURT. 


Oulwater  v.  Nelson. 


James  Outwater."  Tlie  other  receipt  -was  in  the  same  terms, 
and  was  for  37 5^6  hushels  corn.  The  dechiration  alleged  that 
in  consideration  that  the  plaintiff,  Nelson,  had  sent  and  con- 
signed to  the  defendant,  Outwater,  corn,  <fec.  the  defendant  un- 
dertook and  promised  the  plaintiff  to  sell  the  same  and  render  a 
true  account  of  the  sales  within  a  reasonable  time ;  that  the  de- 
fendant received  and  had  sold  the  grain  and  had  not  paid  for  it. 
Tlie  defense  was  that  the  corn  was  consigned  to  the  defendant 
as  a  freighter,  to  dispose  of  when  the  plaintiff  should  direct  and 
order,  and  that  the  plaintiff  never  ordered  the  grain  sold.  Upon 
the  trial  hefore  the  justice,  the  plaintiff  recovered  a  judgment 
f  )r  $45.74 besides  costs.  The  defendant  appealed  to  the  common 
pleas.  Upon  the  trial  in  that  court,  the  defendant  offered  to 
prove  that  it  was  the  custom,  at  the  landing  of  the  defendant, 
and  had  been  for  forty  years,  and  was  known  to  the  plaintiff,  not 
to  call  for  pay  for  grain  left  on  freight  until  it  is  ordered  to  be 
freighted;  and  that  it  was  and  had  been  the  custom,  and  known 
to  the  plaintiff,  not  to  pay  for  grain  until  it  had  been  ordered 
to  be  freighted.  The  evidence  was  objected  to.  and  excluded. 
The  defendant's  counsel  excepted. 

The  counsel  for  the  defendant  also  offered  to  prove  that  the 
plaintiff  had  for  many  years  been  in  the  habit  of  leaving  corn 
on  freight  at  the  defendant's  landing  and  receiving  pay  for  it 
after  he  had  ordered  it  freighted,  and  not  before.  This  evidence 
was  also  objected  to,  and  excluded,  a%d  the  defendant's  counsel 
excepted. 

The  testimony  being  closed,  the  court  charged  the  jury  that 
the  evidence  was  sufficient  to  entitle  the  plaintiff  to  recover. 
The  counsel  for  the  defendant  excepted  to  the  charge.  Various 
other  questions  were  raised  by  the  bill  of  exceptions,  but  as  they 
are  not  noticed  in  the  opinion  of  the  court,  it  is  unnecessary  to 
state  them  here.  The  jury  rendered  a  verdict  for  the  plaintiff, 
for  $36.75,  for  which  amount,  with  costs,  judgment  was  perfect"- 
ed  in  February,  1844,  and  the  defendant  brought  error  to  thia 
court. 


ALBANY— DECEMBER,  1854.  ;^i 


Cutwater  v.  Nelson. 


W  E?w,  for  the  plaintiff  in  error. 
//.  Hogehoom,  for  the  defendant  in  error. 

By  the  Court.  Harris,  J.  Every  contract  may  reasonably 
be  presumed  to  be  made  with  reference  to  the  existing  state  of 
things.  Hence  it  is  said,  that  "  the  usage  or  habit  of,  trade  or 
the  conduct  of  an  individual,  which  is  known  to  the  person  Avho 
deals  with  him,  may  be  given  in  evidence,  to  prove  what  was 
the  contract  between  them."  (2  Greenl.  Ev.  §  251.)  It  ap- 
pears from  the  receipts  given  in  evidence  that  the  corn  deliv- 
ered by  Nelson  to  Cutwater  was  not  sold,  but  was  delivered  "on 
freight."  What  did  the  parties  intend  by  this  ?  It  has  already 
been  held,  in  reference  to  these  very  words,  that  evidence  may 
be  given  to  explain  their  meaning.  {^Dawson  v.  Kittle^  4  Hill, 
107.)  It  is  obvious  that  the  party  receiving  the  corn  did  not 
become  the  absolute  purchaser.  What  then  was  the  relation  in 
which  he  stood  to  the  owner  ?  When  and  how  was  he  to  become 
liable  to  pay  for  the  corn  1  The  defendant  in  the  court  below  of- 
fered evidence  to  explain  this.  He  offered  to  show  that  for  forty 
years  it  had  been  the  practice  at  the  landing  where  this  corn  was 
delivered,  to  pay  for  grain  left  on  freight  after  the  owner  had  or- 
dered it  to  be  freighted,  and  not  before ;  and  that  this  practice 
was  known  to  the  plaintiff.  He  went  further,  and  offered  to  show 
that  the  plaintiff  himself  had  been  in  the  habit  for  many  years  of 
leaving  grain  at  the  same  place  to  be  freighted,  upon  the  same 
terras.  If  these  facts  had  been  proved,  no  one  could  have  hesitated 
to  say  that  when  the  parties  used  the  words  "  on  freight,"  in  their 
contract,  they  both  understood  that  it  Avas  left  to  be  disposed  of 
according  to  the  usage  of  the  place  and  of  the  parties  themselves. 
Such  a  custom  as  that  contained  in  the  offer  is  convenient  and 
reasonable.  It  enables  the  producer  to  select  his  own  time  to 
dispose  of  his  grain,  and  thus  secure  the  chance  of  an  increased 
price  ;  while  the  freighter  may  al^o,  by  freighting  and  selling 
before  he  is  ordered,  avail  himself  of  the  chance  of  a  reduced 
price. 

The  court  also  erred  in  charging  the  jury  that  the  evidence 


32  OASES  IX  THE  SUPREME  COURT. 


20 

32 

m 

158 

fioa 

151 

101a 

123 

Etz  V.  Daily. 


was  sufficient  to  entitle  the  plaintiff  to  recover.  It  was,  in  effect, 
directing  a  verdict  for  the  plaintiff.  It  could  not  be  pretended 
that  the  defendant  was  liable,  unless  he  had  shipped  the  corn, 
nor  unless  he  had  been  called  upon  for  payment.  These,  at 
least,  were  questions  of  fact  which  should  have  been  submitted 
to  the  jury,  even  as  the  law  was  viewed  by '  the  court  below. 
Other  questions  arose  upon  the  trial,  upon  some  of  which  I  am 
inclined  to  think  the  court  erred..  But,  for  the  errors  already 
noticed,  the  judgment  must  be  reversed  and  a  venire  de  novo 
awarded  to  the  Dutchess  county  court ;  with  costs  to  abide  tlie 
event. 

[Albany  General  Term,  December  4,  1854.     Parker,  Wright  unA  Harris, 
Justices.] 


Etz  vs.  Daily. 

Where  an  owner  of  land  conveys  the  same  to  another,  excepting  the  portions 
included  in  the  highway,  he  may  maintain  an  action  of  ejectment  against  the 
grantee,  for  encroachments  upon  the  highway,  or  for  an  exclusive  occupation 
of  it,  by  the  latter. 

APPEAL  by  the  plaintiff,  from  a  judgment  entered  upon  the 
report  of  a  referee.  The  action  was  ejectment,  brought  for 
the  recovery  of  two  pieces  of  land  lying  in  Preble,  Cortland 
county.  On  the  trial  before  the  referee  it  appeared  in  evidence 
that  on  the  11th  day  of  April,  1829,  William  Etz  and  Elizabeth 
his  wife  conveyed,  by  deed  with  warranty  in  fee,  to  Christian 
Etz  (the  plaintiff)  and  John  Etz,  a  farm  in  Preble,  which  in- 
cluded the  premises  in  question.  On  the  23d  day  of  April,  John 
Etz  and  his  wife  conveyed  the  same  premises  to  the  plaintiff; 
both  of  said  deeds  being  properly  acknowledged,  but  no^  record- 
ed. On  the  23d  of  January,  1838,  Christian  Etz  and  wife  con- 
veyed the  same  premises  to  the  defendant,  "excepting  and 
reserving  therefrom  all  of  the  land  included  in  the  above  boun- 
daries which  is  embraced  in  the  highways,"  for  which  land,  in- 


MADISOX— SEPTEMBER,  1854.  33 

Etz  V.  Daily. 

cliided  in  the  highways,  this  action  was  brought.  From  these 
facts  the  referee  found  as  matter  of  law,  that  the  plaintiff  had  a 
title  in  fee  to  the  premises  in  question.  He  further  found  that 
since  the  defendant  purchased  the  farm,  he  had  constructed 
side-walks  and  planted  shade  trees  along  the  side  of  the  road 
adjoining  his  premises ;  that  he  had  also  on  several  occasions 
unloaded  wood  and  lumber,  and  thrown  the  manure  from  his  sta- 
bles into  the  road  adjoining  his  premises  ;  that  he  had  also  on 
different  occa5;.ions,  and  until  within  a  short  time  prior  to  the 
commencement  of  this  suit,  claimed  to  own  said  road,  and  denied 
the  plaintiiF's  title  thereto.  That  the'premises  claimed  were  a 
public  highway  in  the  town  of  Preble,  and  had  been  used  as  such 
for  a  long  period,  and  over  forty  years,  and  were  still  an  open 
and  traveled  road.  That  the  said  road  was  so  used  when  the 
defendant  purchased  of  the  plaintiff;  and  that  the  defendant  had 
at  no  time  moved  his  fences  into  or  upon  said  road  beyond  where 
they  were  located  by  the  plaintiff. 

The  referee  found,  as  matter  of  law,  that  the  plaintiff  was  not 
entitled  to  recover  possession  of  the  premises  claimed,  or  any 
part  thereof;  and  he'  directed  judgment  to  be  entered  for  the 
defendant,  with  costs.         '' 

P.  McDonald,  for  the  appellant. 

Sedgwick  6^  Outiaater,  for  the  respondent. 

By  the  Court,  Gray,  J.  The  facts  in  this  case  are,  in  short, 
these :  The  plaintiff  conveyed  to  the  defendant  his  farm  in 
Preble,  Cortland  county,  excepting  therefrom  the  land  em- 
braced in  its  boundaries  which  at  the  date  of  the  deed  was  in- 
cluded in  the  highway.  Since  the  conveyance  the  defendant 
has  dug  up  the  road  and  run  a  water  pipe  across  it ;  set  out 
fruit  and  shade  trees,  and  piled  stone,  lumber  and  manure  with- 
in its  boundaries,  and  used  a  portion  of  it  for  farming  purposes, 
and  claims,  as  against  the  plaintiff,  the  right  to  appropriate  the 
highway  to  the  uses  described.  The  simple  and  only  question 
presented  is,  whether  ejectment  can  be  maintained  by  the  plain- 

YoL.  XX.  5 


31  CASES  IX  THE  SUPREME  CO  CRT. 

Etz  V.  Daily. 

tiff  for  the  recovery  from  the  defendant  of  the  premises  thua 
used  and  occupied  by  liira.  That  the  freehohl  of  the  land  in 
question  is  in  the  plaintiff,  no  one  denies ;  but  whether  eject- 
ment can  be  maintained  by  the  owner  of  the  freehold,  while  the 
highway  exists,  is  a  question  upon  which  there  is  a  diversity  of 
opinion  among  judges.  Goodtitle  v.  Acker,  (1  Bur.  133, 145,)  and 
3  Kent's  Com.  433,  are  authorities  in  favor  of  the  right  to 
maintain  the  action.  And  although  the  precise  question  here 
presented,  has  not  been  adjudge(T,  in  this  state,  it  has  been  judi- 
cially asserted  in  several  cases  ;  by  Piatt,  J.,  in  Jackson  v. 
Hathaivay,  (15  John.  453  ;)  by  Savage,  Ch.  J.,  in  Saunders  v. 
Wilson,  (15  Wend.  339  ;)  by  Cowen,  J.,  in  Pe.arsall  v.  Post, 
(20  id.  126  ;)  by  Gridley,  J.,  in  Burdick  v.  Goit,  (3  Barh.  S. 
C.  R.  468  ;)  and  by  Hand,  J.,  in  the  case  of  the  Northern 
Turnpike  Company  v.  Smith,  (15  id.  355.)  The  only  opinion 
against  this  doctrine,  emanating  from  the  bench  in  this  state, 
is  to  be  found  in  Adams  v.  The  Saratoga  and  Wash.  R.  R. 
Co.  (11  Barh.  414,  453-5.)  The  learned  judge  in  that  case 
follows  the  opinion  of  a  distinguished  judge  in  the  case  of  The 
City  of  Cincinnati  v.  The  Lessee  of  White,  (6  Peters'  U.  S. 
R.  431,  441-2.)  It  is  worthy  of  remark,  that  in  each  of  these 
cases  the  opinions,  although  elaborate,  were  extra  judicial.  The 
only  question  in  the  case  last  referred  to  was,  whether  the  land 
sought  to  be  recovered  had  been  dedicated  to  public  use.  The 
same  question  arose  in  the  case  of  Adams  v.  The  Saratoga 
and  Wash.  R.  R.  Co.,  and  there  the  question  was  whether  it 
had  been  used  for  purposes  other  than  that  for  which  it  was 
dedicated.  There  had  been  no  appropriation,  in  either  case,  to 
private  use,  and  hence  the  point  here  made  was  not  up,  and  so 
one  of  the  learned  members  of  the  court,  upon  being  referred 
to  the  case,  has  since  decided.  {Northern  Turnpike  Co.  v. 
Smith,  15  Barh.  355,  358.)  Thus  it  will  be  seen  that  these 
opinions  are  of  no  greater  weight,  as  authority,  than  those  hold- 
ing to  the  contrary  doctrine,  before  referred  to,  and  that  in 
reality  nothing  has  been  decided  in  this  state  that  tends  in  the 
slightest  degree  to  impair  the  influence  of  opinions  emanating 
from   the   highest  legal   intelligence,  in   favor  of  the   right  to 


AI.BANY— MAY,  1855  35 


Gillespie  v.  Rosekrants. 


maintain  this  suit.  The  cases  referred  to  in  iSmi.i/t's  Leading 
Cases,  183,  184,  show  that  wherever  the  question  has  arisen, 
except  in  Connecticut,  the  right  to  maintain  ejectment  has  been 
established.  The  only  objection  ever  urged  against  it  is,  that 
exclusive  possession  of  the  premises  in  dispute  cannot  be  given 
to  the  plaintiff.  But  let  this  objection  prevail  and  an}'  erection 
short  of  a  nuisance  may  be  made  on  the  road  side  in  front  of 
the  owner's  domicil,  ^«ind  the  owner  would  be  without  complete 
redress,  and  the  lawless  occupant  would  hold  it  until  the  use  of 
the  whole  road  as  a  highway  should  be  discontinued,  unless  the 
public  authorities  should  see  fit  to  remove  him.  This  objection, 
it  seems  to  me,  is  completely  disposed  of  by  Lord  Mansfield, 
who  held  that  the  sheriff  should  deliver  the  possession  of  the 
defendant  to  the  plaintiif,  subject  to  the  public  easement.  The 
conclusion  to  which  I  have  arrived  is,  that  the  judgment  enter- 
ed on  the  report  of  the  referee  should  be  reversed,  and  a  new 
trial  ordered. 

Judgment  accordingly. 

[Madison  General,  Term,  September  12,  1854.     Gray,  Mason  and  Shank- 
land,  Justices.] 


Gillespie  vs.  Rosekrant.s. 

The  110th  section  of  the  code  which  requires  that  a  promise,  to  take  a  case  out 

of  the  operation  of  the  statute  of  limitations,  shall  be  in  wiiting,  is  not  applica- 
ble to  cases  where  the  right  of  action  had  accrued  before  the  adoption  of  the  code. 

APPEAL  from  a  judgment  .of  the  Ulster  county  court.  The 
action  was  brought  before  a  justice  of  the  peace.  The 
plaintiff  claimed  to  recover  upon  a  promissory  note  for  $31.52, 
dated  July  3,  1845,  made  by  the  defendant  and  payable  to  the 
plaintiff,  on  demand.  The  action  was  commenced  on  the  23d 
of  July,  1851.  The  defendant,  by  his  answer,  insisted  that  the 
note  was  barred  by  the  statute  of  limitations.     Upon  the  trial 


36         CASES  IN  THE  SUPREME  COURT. 

Gillespie  v.  Rosekrants. 

the  plaintiff  proved  that,  on  the  13th  of  June,  1851,  an  agent 
who  held  the  note  for  collection,  called  on  the  defendant  b)  ob- 
tain payment,  or  a  new  note,  and  that  the  defendant  then  promised 
that  he  would  pay  one  half  of  the  note  and  the  interest  thereon 
on  the  20th  of  June,  and  arrange  the  other  half  by  giving  a 
new  note,  or  in  some  other  way.  The  justice  rendered  judg- 
ment in  favor  of  the  plaintiff  for  $44.94,  the  amount  of  the  note 
and  interest,  and  $2.78  costs,  which  judgment  was  reversed  by 
the  county  court  upon  appeal.  The  plaintiff  appealed  to  this 
court. 

L.  Tremain,  for  the  plaintiff. 

E.  Cooke,  for  the  defendant. 

By  the  Court,  Harris  J.  The  plaintiff's  cause  of  action 
was  undoubtedly  barred  unless  the  promise  made  by  the  de- 
fendant on  the  13th  of  June,  was  sufficient  to  take  it  out  of  the 
statute.  It  is  not  denied  that  such  would  be  the  effect  of  that 
promise,  were  it  not  for  the  110th  section  of  the  code,  which 
requires  that  a  promise,  to  take  a  case  out  of  the  operation  of 
the  statute  of  limitations,  must  be  "  contained  in  some  writing 
signed  by  the  party  to  be  charged  thereby."  The  court  below 
held  that  this  provision  of  the  code  was  applicable  to  the  case, 
and,  upon  that  ground,  reversed  the  judgment  of  the  justice.  In 
making  this  decision,  it  is  obvious  that  the  provision  in  the  73d 
section,  which  declares  that  the  title  of  the  code  in  which  the  110th 
section  is  found,  shall  not  extend  to  cases  where  the  right  of 
action  had  already  accrued,  was  overlooked.  It  is  expressly 
provided  in  that  section,  that  the  statutes  in  force  at  the  time 
the  code  was  adopted,  shall  be  applicable  to  such  cas|s.  This 
was  such  a  case.  The  note  having  been  made  in  July,  1845, 
and  being  payable  on  demand,  a  right  of  action  had  accrued, 
and  was  existing  at  the  time  the  code  took  effect  as  a  law.  The 
provisions  of  the  code,  therefore,  did  not  affect  the  case. 

The  case  of  Wadswortli  v.  Thomas,  (7  Barh.  445,)  has  no 
application  to  the  question  under  consideration.     That  case  arose 


SCHENECTADY— MAY,  1855.  37 


Milliman  v.  Neher. 


nnder  the  code  of  1848.  The  90th  section  of  that  act,  which  is 
the  110th  section  of  the  present  code,  merely  provided  that  in 
cases  where  the  time  for  commencing  an  action  arising  on  con- 
tract shouhl  have  expired,  the  cause  of  action  should  not  be 
deemed  to  have  been  revived  by  an  ackowledgment  or  new  prom- 
ise unless  the  same  should  be  in  writing  (fee.  The  provision 
had  no  reference  to  a  case  where  the  promise  relied  upon  to 
take  the  case  out  of  the  statute  of  limitations  had  been  made 
before  the  debt  had  become  barred.  But  the  110th  section,  as 
amended  in  1849,  was  made  applicable  to  every  case  of  ac- 
knowledgment or  new  promise,  except  in  cases  where  a  right  of 
action  was  in  existence  at  the  time  the  code  took  effect  as  a  law. 
The  case  in  hand  is  within  that  exception.  The  decision  of  the 
county  court  was,  therefore,  erroneous,  and  should  be  reversed, 
and  the  judgment  of  the  justice  affirmed. 

[Albany   General  Term,   May  7,   1855.     Parker,    Wright  and   Harrit, 
Fuslices.J 


MiLLiMAN  VS.  Neher. 

A  chattel  mortgage  can  only  operate  upon  property  in  actual  existence  at  the 
time  of  its  execution.     It  cannot  be  given  on  the  future  products  of  land. 

Thus  where  a  lease  was  executed,  in  March,  1852,  between  the  plaintiff  and  M., 
of  a  farm,  for  one  year  from  the  Ist  of  April  then  next,  at  a  specified  rent,  and 
it  was  stipulated  that  the  plaintiff  should  have  a  "  lien  upon  the  crops,  as  secu- 
rity for  said  rent,"  and  that  M.  should  "  market  the  same ;"  Held  that  a  person 
who  had  purchased  from  M.  corn,  raised  ui)on  the  farm,  with  knowledge  of  the 
plaintiff's  claim  to  a  lien  thereon,  could  hold  the  same,  as  against  the  plaintiff. 

THIS  action  was  commenced  before  a  justice  of  the  peace,  to 
recover  the  value  of  a  quantity  of  corn.     On  the  trial  the 
'plaintiif  read  in  evidence  a  lease  dated  March  25, 1852,  executed 
by  the  plaintiff  and  one  William  Montgomery,  by  which  lease 
the  plaintiff  leased  to  Montgomery  a  farm,  for  one  year  from 
April  1st  then  next,  at  an  annual  rent  of  $325.     The  last  clause 


30 

,S7 

U 

15 

41 

407 

41 

612 

62 

^i 

17h  183 

27h 

93 

42k  623 

65a  467 

82a  376 

118a 

136 

38  OASES  IN  THE  SUPKEME  COUKT. 

Millinian  v.  Neher. 

of  the  lease  was  as  follows  :  "  And  said  MilHman  shal.  havt. 
the  lien  upoti  the  crops  as  seatirity  for  said  rent,  said  Mont- 
gomery to  market  the  sameP       • 

The  plaintiff  then  proved  that  in  the  fall  or  winter  of  1852, 
Montgomery  sold  to  the  defendant  about  164  bushels  of  corn  in 
the  ear,  for  Avhich  the  defendant  gave  his  promissory  note,  and 
that  the  defendant  knew  of  the  plaintiff's  claim,  when  he  made 
the  purchase.  Other  facts  were  proved  on  the  trial,  but  none 
having  any  important  bearing  upon  the  questions  considered  in 
the  case. 

The  justice  gave  judgment  for  the  plaintiff,  which  the  county 
court  reversed  ;  whereupon  an  appeal  was  taken  to  this  court. 

C.  R.  Ingalls,  for  the  appellant. 

J.   W.  Crane  and  H.  W.  Merrill,  for  the  respondent. 

By  the  Court,  Bockes,  J.  The  lease  purports  to  have  been 
executed  and  delivered  on  the  24th  of  March,  and  the  term  was  to 
commence  on  the  1st  day  of  April  following.  When  the  supposed 
lien  was  created,  therefore,  Montgomery  had  only  a  lease  of  the 
farm  in  pj'esenti,  to  commence  on  a  future  day.  The  crops 
then  had  no  existence,  nor  was  it  certain  that  they  ever  would 
exist.  In  Barnard  v.  Eaton,  (2  Cush.  295,)  it  was  decided  that 
a  mortgage  could  not  apply  to  goods  not  in  existence,  or  not  ca- 
pable of  being  identified  at  the  time  of  its  execution  ;  and  Jus- 
tice Shaw,  in  giving  the  opinion  of  the  court  remarked,  that  the 
mortgage  was  an  executed  contract ;  a  present  transfer  of  title, 
although  conditional  and  defeasible  :  it  could  therefore  only  bind 
and  affect  property  existing  and  capable  of  being  identified  at 
the  time  it  was  made.  See  also  Jones  v.  Richardson,  (10  Mett 
A%l-^Winslow  \.  Merchants'  Ins.  Co.,  (4?V/.  307;)  Codmar, 
V.  Free^nan,  (3  Cnsh.  306.)  In  the  Bank  of  Lansingburgh 
V.  Crary,  (1  Barb.  «S*.  C.  R.  542,  551,)  Justice  Paige  intimates 
the  opinion  that  a  chattel  mortgage  can  only  operate  on  prop- 
erty in  actual  existence  at  the  time  of  its  execution^  and  cannot 
be  given  on  the  future  products  of  real  estate.     The  same  learned 


SCHENECTADY— MAY,  1855.  39 

Milliman  v.  Neher. 

judge  afterwards  considered  the  question  in  Otis  v.  i^ill,  (8 
Barb.  102  ;)  and  it  was  there  held  that  a  grant  or  mortgage  of 
property  not  then  in  existence  was  void  in  law. 

The  case  o^  Mimscll  v.  Carew,  (2  Cash.  50,)  is  directly  in 
point.  Munsell  leased  the  half  of  his  farm  to  Buckland,  for  a 
year,  at  the  rent  of  $60,  and  it  was  provided  in  the  lease  that 
in  case  of  refusal  or  neglect  to  pay  the  rent  Munsell  was  to 
have  all  the  crops  which  might  or  should  grow  on  the  farm,  to 
dispose  of  as  he  should  see  fit.  Carew,  well  knowing  the  con- 
tents of  the  lease,  took  title  to  some  of  the  crops  from  Buckland, 
and  refused  to  deliver  the  same  to  Munsell,  on  demand.  In  an 
action  of  trover  by  Munsell .  against  Carew,  it  was  held  that 
until  delivery  of  the  crops  to  Munsell,  or  until  possession  thereof 
was  taken  by  him,  they  remained  the  property  of  Buckland,  and 
might  be  sold  by  him  or  attached  by  creditors. 

We  are  referred  to  Shuart  v.  Taylor,  (7  How.  Pr.  R.  251.) 
as  a  case  favorable  to  the  plaintiff's  recovery.  In  that  case  one 
Cogswell  executed  a  raortcjao-e  to  Clark  of  his  rio^ht,  title  and 
interest  in  and  to  about  thirty  acres  of  fallow  or  wheat.  His 
interest  was  the  use  of  the  fallow  then  in  his  possession,  with 
the  right  to  sow  it  to  wheat,  on  shares ;  and  part  of  the  fallow 
was  then  sowed.  Justice  Strong  held  that  the  mortgaore  was 
operative  on  the  property  described  in  it,  and  remarked  that 
"  as  the  mortgage  was  upon  the  interest  of  Cogswell  in  the  fal- 
low, I  am  of  the  opinion  it  bound  his  right  to  the  use  of  the 
land,  and  the  wheat  which  was  raised  in  the  exercise  of  that 
right."  And  he  further  stated  that  "this  was  not  the  case  of  a 
mortgage  of  property  which  the  mortgagor  did  not  own  at  the 
time,  but  one  of  a  mortgage  upon  an  interest  in  property  which 
then  belonged  to  the  mortgagor." 

It  cannot  be  pretended,  in  the  case  under  consideration,  that 
Montgomery  mortgaged,  or  intended  to  mortgage,  •'  his  right  to 
the  use  of  the  land ;"  hence,  the  wide  difference  between  this 
case  and  the  one  cited.  Trees,  grass,  and  corn  growing  and 
standing  upon  the  ground,  fruit  upon  trees,  and  wool  upon  the 
sheep's  back,  may  be  mortgaged.  {Shep.  Touch.  241,  Hue 
Grant.)     So  also,  a  man  may  grant  all  the  wool  of  his  sheep 


40  CASES  IN  THE  SUPKEME  COURT. 

Jlilliman  v.  Neher. 

for  seven  years,  but  this  grant  is  upheld  on  the  ground  thai  tie 
Avool  is  deemed  to  be  continually  growing  ;  hence  the  grantor 
has  at  the  time,  if  not  an  actual,  a  potential  ownership  and  pos- 
session of  the  property  granted.  There  are  cases  in  which 
sales  and  conveyances  of  future  freight  or  earnings  of  ships,  and 
of  grants  of  estates  in  expectancy,  have  been  sustained  ;  but 
those  were  cases  in  equity.  This  is  an  action  at  law  ;  and  the 
plaintiff's  right  to  recover  depends  upon  his  ability  to  show  a 
legal  title  to  the  corn.  To  support  his  action  the  clause  in  the 
lease  must  amount  to  a  sale,  a  mortgage  or  a  pledge  of  the  crops. 
They  were  not  pledged,  because  they  were  never  delivered. 
Delivery  is  essential  to  constitute  a  pledge.  {Broumell  v. 
Hawkins,  4  Barb.  491.)  A  mortgage  of  goods  is  in  some  cases 
valid  without  delivery,  but  not  so  a  pledge.  (Per  Kent,  J., 
Corteli/ou  V.  Lansing,  2  CaiitS'S^  Cas.  200.  Wilson  v.  Little, 
2  Corns.  443.     Story  on  Bailment,  §  287.) 

There  was  no  sale  or  mortgage  of  the  crops,  for  the  reason 
that  they  had  no  existence  when  the  instrument  was  executed 
and  delivered.  Besides,  I  am  of  the  opinion  that  the  terms 
used,  that  the  plaintiff  should  have  a  "/ie?^  on  the  crops  as  se- 
curity," do  not  import  a  sale  or  mortgage.  A  mortgage  is  a 
conditional  sale.  This  clause  of  the  lease  contains  no  Avords  of 
sale,  nor  any  from  which  a  sale  can  be  implied.  {Brownell  v. 
Hawkins,  4  Barb.  491.) 

But  there  is  still  another  view  of  the  case,  conclusive  against 
the  plaintiff's  right  of  recovery. 

Montgomery  was  "  to  market "  the  crops.  The  phrase  to 
market,  has  a  definite  and  well  understood  signification,  and 
means  to  sell.  Montgomery,  therefore,  had  authority  to  sell 
the  corn  ;  and  whether  in  his  own  right  as  principal  and  abso- 
lute owner,  or  as  agent  for  the  plaintiff,  can  make  no  difference. 
It  was  insisted,  on  the  argument,  that  the  authority  to  market 
the  crops  should  be  construed  to  mean,  to  sell  the  same  subject 
to  the  plaintiff's  lien;  but  that  would  be  in  effect  to  strike  out 
of  the  lease  the  words  conferring  the  power.  Montgomery 
would  have  had  the  right  to  sell  the  crops  subject  to  the  plain- 
tiff's lien,  without  any  authority  from  him  whatever.     The  par 


SCHENECTADY— MxiY,  1855.  4  ^ 


Millimau  v.  Nelier. 


ties  contracted  for  themselves,  and  no  term,  qualification  or 
conlition  can  be  erased,  or  superadded,  b}'  the  court. 

It  is  insisted  that  this  construction  will  totally  defeat  the 
lien.  Better  so  than  that  a  purchaser  under,  the  plaintiff's 
written  authority  should  be  compelled  to  pay  twice  for  the  same 
property.  He  cannot  be  permitted  to  invalidate  a  sale  which 
he  in  plain  terms  authorized.  But  it  does  not  follow  that  the 
plaintiff's  rights  under  that  clause  of  the  lease  are  destroyed 
by  this  construction.  He  may  have  been  entitled  to  relief  in 
equity.  As  between  the  parties  to  the  instrument,  and  in  re- 
gard to  the  note  given  on  the  sale  of  the  corn,  certain  rights 
would  remain.  If  the  clause  in  the  lease  giving  the  supposed 
lien  had  any  legal  efficacy,  the  plaintiff  might  have  reached  the 
note,  in  the  hands  of  Montgomery.  But  this  is  not  the  place 
to  discuss  the  plaintiff's  extraordinary  and  equitable  rights. 
In  this  action  the  examination  must  be  confined  to  questions  in 
regard  to  the  legal  title  to  the  property  in  controversy.  {Otis 
V.  Sill,  supra,  121.) 

The  cases  are  numerous  in  which  the  doctrine  is  held,  that  as 
between  mortgagees  and  good  faith  purchasers  or  creditors  of 
the  mortgacror,  an  instrument  which  should  allow  the  mortgagor 
to  deal  with  the  mortgaged  property  as  his  own  would  be  void. 
( Griswold  v.  Sheldon,  4  Cams.  581,  aiid  cases  there  cited  in 
opinion  of  Brown,  J.)  When  the  instrument  creating  the  lien 
also  confers  on  the  mortgagor  a  right  or  power  to  sell  the  prop- 
erty mortgaged,  the  buyer  should  be  protected  as  a  purchaser 
in  good  faith.  He  is  presumed  to  have  purchased  under  the 
authority  conferred  by  the  instrument,  {^Benson  v.  BoUes, 
8  Wend.  175.)  Such  an  instrument  would  create  no  lien  on 
the  property,  as  against  a  purchaser  or  creditor. 

The  judgment  of  the  county  court  must  be  affirmed. 

[Schenectady  Generai,  Term,  May  7,  1855.  Bockes,  C.  L.  Allen  and 
James,  Justices.] 

V  .L.  XX.  6 


42  CASES  IN  THE  SUPllEME  COURT. 


Clark  &  Wood  vs.  Dales  &  Dales. 

Or  '.he  30th  of  August,  1853,  the  defendants  proposed  to  tlie  plahitiffSj  by  letter 
as  follows:  "  We  will  engage  to  furnish  you  a  boatload  of  flour,  the  last  of 
next  week,  saiire  quality  sent  G.  and  M.,  at  S4-7-6,  free  to  boat."  This 
proposition  was  immediately  answered  by  the  plaintiffs  in  these  words  :  "  We 
will  take  the  boat  load  flour,  as  per  your  proposition  in  yours  of  the  30th  insl." 
Held  that  this  was  a  clear  and  unqualified  acceptance,  by  the  i)iaintiffs,  of  the 
defendants'  proposal,  and  that  as  soon  as  the  plaintiffs'  letter  had  gone  beyond 
their  control  the  bargain  was  complete,  and  it  became  mutually  obligatory 
upon  the  parti&s,  and  could  not  be  rescinded  by  either,  without  the  consent 
of  the  other. 

The  letter  of  acceptance  contained  this  inquiry :  "  Please  say  to  us  how  we  shall 
remit  1"  Held  that  this  inquiry  did  not  qualify  the  acceptance  of  the  defend- 
ants' proposition. 

Held  also,  that  it  was  competent  for  the  parties,  by  a  subsequent  pai-ol  contract, 
to  extend  the  time  for  the  performance  of  the  original  agreement ;  and  this 
without  any  new  consideration. 

And  the  plaintiffs  being  ready  at  the  place  of  delivery,  on  the  day  to  which 
the  contract  was  extended,  and  willing  to  peiform  on  their  part,  and  the 
defendants  refusing  to  deliver  the  flour;  it  was  held,  further,  that  the  true 
measure  of  damages  was  the  difference  between  the  contract  price  and  the 
value  of  the  flour  agreed  to  be  delivered,  on  that  day,  with  interest. 

When  one  party  agrees  to  sell  and  deliver  goods  at  a  particular  place,  and  the 
other  agrees  to  receive  and  pay  for  them,  an  averment  by  the  purchaser,  of  a 
readiness  and  willingness  to  receive  and  pay  at  that  place,  in  case  he  sues  for 
a  non-delivery,  is  indispensably  necessary  to  a  good  complaint. 

But  the  omission  to  make  this  averment  is  a  defect  which  is  cured  by  a  verdict 

On  appeal,  in  such  a  case,  from  the  judgment  rendered  at  the  citcuit,  the  fact 
omitted  to  be  averred  in  the  complaint.  Mill  be  presumed  to  have  been  proved ; 
inasmuch  as  a  readiness  and  willingness  to  perform  could  not  be  proved,  so  as 
to  authorize  a  verdict  for  the  plaintiffs,  without  also  proving  a  readiness  and 
willingness  to  do  so  at  the  place. 

This  is  not  such  a  case  of  variance  between  the  complaint  and  the  facts  found 
or  pi-oved  as  will  be  deemed  to  affect  the  substantial  rights  of  the  parties. 

Yet  an  amendment  of  the  complaint  is  admissible  and  ai)propriate,  under  such 
circumstances,  for  the  purpose  of  securing  certainty  and  harmony  in  the  rec- 
ord ;  and  is  sanctioned  by  ^  173  of  the  code. 

The  amendment  may  be  ordered  at  a  general  term,  and  without  formal  notice  of 
motion  for  that  purpose,  when  the  object  of  the  amendment  is  only  to  conform 
the  complaint  to  the  facts  found,  and  when  the  record  furnishes  the  only 
grounds  for  and  against  the  same. 

THIS  was  an  appeal  by  the  defendants  from  a  judgment  en- 
tered at  a  special  term  of  the  court.     The  first  count  of  the 


SOHENECTADy-MAY,  1855.  43 


Clark  V.  Dales. 


complaint  alleged  a  contract  between  the  parties,  made  on  the 
30th  day  of  August,  1858,  for  the  sale  and  delivery  by  the  de- 
fendants to  the  plaintiffs  of  a  boat  load  of  flour,  at  the  plaintiffs' 
boat  at  the  village  of  Jordan,  for  $4.93f  per  barrel,  to  be  de- 
livered during  the  week  next  following  the  time  of  making  the 
contract.  The  plaintiffs  alleged  that  they  had  been  always 
ready  and  willing  to  receive  and  pay  for  the  flour,  but  that  the 
defendants  had  wholly  omitted  to  perform  on  their  part.  The 
second  count  was  in  substance  the  same  as  the  first,  except  that 
it  alleged  that  the  time  of  delivery,  mentioned  in  the  first  con- 
tract, was  extended  one  week,  by  the  agreement  of  the  parties. 
The  third  count  was  the  same,  except  that  it  alleged  that  the 
flour  was  to  be  delivered  in  a  reasonable  time.  The  fourth 
count  was  in  the  like  form,  except  that  it  alleged  the  flour  was 
CO  be  delivered  by  the  1st  day  of  October,  1853.  The  fifth 
count  was  the  same,  except  that  the  time  of  delivery  was  al- 
leged to  have  been  on  the  2d  day  of  Oct.  1853.  The  answer 
denied  all  the  allegations  in  the  complaint.  The  cause  was  tried 
at  the  circuit  in  Montgomery  count}'-,  in  February,  1854,  before 
the  Hon.  C.  L.  Allen,  J.,  without  a  jury.  The  justice  found 
the  following  facts : 

That  on  the  31st  day  of  August,  1853,  the  defendants,  who 
were  partners  and  millers  doing  business  at  Jordan,  in  the 
county  of  Onondaga,  agreed  in  writing,  with  the  plaintiffs,  who 
were  partners  and  merchants  doing  business  at  Fort  Plain,  in 
the  county  of  Montgomery,  to  sell  and  deliver  at  or  to  their 
boat  at  Jordan,  800  barrels  of  flour,  upon  the  following  terms : 
That  the  flour  should  be  of  the  quality  of  the  flour  previous  to 
that  time  sent  by  the  defendants  to  Gilchrist  He  Mozer,  should 
be  delivered  the  last  of  the  then  next  week,  free  of  expenses, 
to  the  plaintiffs,  to  their  boat  at  Jordan,  in  the  Erie  canal,  and 
that  the  plaintiffs  should  pay  the  defendants  for  said  flour 
at  the  rate  of  $4.91  per  barrel ;  in  consideration  of  which  the 
said  plaintiffs  at  the  same  time  agreed  with  the  said  defendants 
in  writing,  and  promised  the  defendants  to  accept  and  receive 
the  said  flour  at  the  time  and  place  before  mentioned,  and  to 
pay  for  it  at  the  rate  of  $4.94  per  barrel ;  and  the  defendants 


44  CASES  IN  THE  SUPREME  COURT. 

Clark  v.  Dales. 

agreed  with  the  plaintiffs  at  the  same  time  to  procure  to  be  de- 
livered the  said  flour  at  the  time  and  place  and  in  the  mannel 
aforesaid  ;  that  the  time  for  the  delivery  of  the  said  flour  Avas  by 
the  agreement  of  the  parties  in  writing,  on  or  about  the  3d  of 
September,  extended  for  a  reasonable  time,  until  the  1st  of 
October,  1853,  at  which  day  the  delivery  of  the  flour  at  the 
plaintiffs'  boat  at  Jordan,  (which  boat  was  then  lying  in  the  Erie 
canal  at  Jordan,  ready  for  the  reception  of  said  flour,)  was  de- 
manded of  the  defendants  by  the  plaintiff's,  and  the  w^hole 
amount  of  the  purchase  money,  at  the  price  agreed  upon,  ten- 
dered and  off"ered  to  the  defendants,  at  Jordan  aforesaid  ;  that 
the  defendants  then  and  there  refused  to  accept  and  receive  the 
said  money,  and  refused  and  neglected  to  deliver  the  said  800 
barrels  of  flour,  or  any  part  thereof,  to  the  plaintiffs  at  their 
boat,  pursuant  to  the  said  contract ;  that  the  plaintiffs  were  at 
all  times  ready  and  willing  to  accept  and  receive  and  pay  for 
the  flour  at  their  boat  at  Jordan,  as  required  by  the  contract  ; 
that  the  time  for  the  delivery  of  the  flour  was  from  time  to  time 
extended  at  the  sole  request  of  the  defendants,  in  Avriting,  by 
the  plaintiff's'  consent,  until  the  1st  of  October,  1853,  And  the 
judge  further  found  that  the  market  value  of  flour  of  the  de- 
scription mentioned  in  the  contract,  which  was  denominated 
Skaneateles  Lake  Mill  brand,  was,  on  the  1st  day  of  October, 
1853,  at  Jordan,  $6.50  per  barrel ;  and  he  adjudged  and  deter- 
mined as  matters  of  laAV,  from  the  above  facts,  1st.  That  the 
flour  was  to  be  paid  for  at  the  rate  mentioned  in  the  contract, 
in  cash,  on  the  delivery  at  the  plaintiff's'  boat,  at  Jordan. 
2d.  That  the  plaintiffs  were  entitled  to  recover  against  the 
defendants  damages  for  the  breach  of  contract  on  their  part,  in 
neglecting  and  refusing  to  deliver  the  flour  when  demanded,  on 
the  1st  day  of  October,  1853.  3d.  That  the  amount  of  dam- 
ages the  plaintiff's  were  entitled  to  recover  against  the  defendants 
was  the  sum  of  twelve  hundred  and  forty-eight  dollars. 

The  defendants'  counsel  moved  for  a  nonsuit,  or  dismissal  of  the 
complaint,  on  the  following  grounds  :  1.  That  no  contract  for  the 
sale  and  delivery  of  the  flour  had  been  proved,  as  the  time  and 
manner  of  payment  had  not  been  agreed  upon  by  the  parties 


SOnENECTADY— MAY,  1855.  45 

Clark  V.  Dales. 

2.  That  the  complaint  did  not  contain  a  statement  of  sufficient 
facts  to  constitute  a  cause  of  action.  3.  That  the  plaintiffs 
were  not  entitled  to  recover  under  the  first  count  in  the  com- 
plaint, for  the  following  reasons  :  (1.)  That  it  did  not  contain  a 
statement  of  sufficient  facts  to  constitute  a  cause  of  action  ; 
(2.)  That  the  contract,  or  cause  of  action,  if  any  was  set  up. 
was  not  proved ;  (3.)  That  the  performance  or  readiness  to 
perform,  on  the  part  of  the  plaintiffs,  was  not  proved  ;  (4.)  That 
no  final  agreement  between  the  parties  was  proved  ;  (5.)  That 
the  plaintiffs  were  not  entitled  to  recover  on  either  of  the  re- 
maining counts,  for  the  same  reasons  ;  (6.)  That  the  proof  failed 
to  show  a  cause  of  action.  His  honor  the  judge  denied  the 
motion,  and  the  counsel  for  the  defendants  excepted.  The  de- 
fendants also  excepted  to  the  finding  of  the  justice  as  to  the  facts. 
Judgment  was  entered  in  favor  of  the  plaintiffs  for  $1352.73. 

Porter  ^  Raynor,  for  the  appellants.  I.  The  complaint  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  It  al- 
leges that  the  defendants  were  to  deliver  the  flour  to  the  plain- 
tiffs at  their  boat  in  Jordan.  A  readiness  and  willingness  to 
pay  the  defendants  at  the  plaintiffs'  boat  should  have  been  al- 
leged. {Coonley  Y.  Anderson,  \  11111,519.  Porter  v.  Hose, 
12  Joh7i.  209.  4  Term  R.  125.  1  East,  203.  2  Bos.  <^  Pnl. 
447.  1  id.  320  and  n.  4.  5  John.  179.  2  id.  207.  2  Saund. 
252,  n.  3.  Mont.  Co.  Bank  v.  Albany  City  Bank,  3  Seld.  464.) 
II.  The  proof  entirely  fails  to  sustain  either  count  in  the 
complaint.  The  first  count  alleges  that  the  flour  was  to  be  de- 
livered the  last  of  the  week  next  followincr  the  time  of  the  mak- 
ing  of  the  contract,  which  would  be  on  Saturday  the  10th  of 
September.  It  cannot  be  pretended  that  the  proof  shows  a 
readiness  on  the  part  of  the  plaintiffs  at  Jordan  to  receive  and 
pay  for  the  flour  at  that  time.  An  excuse  for  not  being  so  ready 
and  w.lling  is  not  set  up  in  the  complaint,  and  will  not  therefore 
aid  cKr  count  in  that  respect.  {Crandall  v.  Clarke,  7  Barb. 
169.  1  Chit.  PI.  320,  321,  326.  Baldipin  v.  Munn,  2  Wend. 
399.)  The  2d  count  sets  forth  the  same  contract  contained  in 
the  first,  and  alleges  that  by  an  agreement  between  the  parties 


46  CASES  IN  THE  SUPREME  COURT. 


Clark  V.  Dales. 


the  time  for  the  delivery  of  the  flour  was  extended  one  week. 
It  also  alleges  a  readiness  and  willingness  on  the  part  of  the 
plaintiflfs  to  perform.  It  will  be  seen  that  there  is  no  proof  of 
the  extension  set  forth  in  this  count,  and  consequently  no  proof 
of  a  readiness  and  willingness  on  the  part  of  the  plaintiffs  to 
perform  on  their  part.  The  3d  count  sets  forth  an  original  con- 
tract to  sell  and  deliver  within  a  reasonable  time.  &c.  There  is 
no  proof  tending  to  sustain  this  count.  The  4th  count  sets  forth 
an  original  contract  to  sell  and  deliver  &c.,  on  the  first  day  of 
October,  1853.  There  is  no  proof  tending  to  show  such  a  con- 
tract. The  5th  count  sets  forth  an  original  contract,  in  sub- 
stance the  same  as  that  set  forth  in  the  4th  count.  To  sustain 
an  action  under  either  of  the  four  last  counts  there  should  be 
proof  not  only  of  the  agreements  therein  set  forth,  but  that  the 
agreements  were  in  writing.  The  letter  of  the  plaintiffs  of  Sept. 
5,  in  answer  to  the  defendants'  letter,  in  which  they  state  their 
inability  to  deliver  the  flour  as  soon  as  was  expected,  so  far  from 
agreeing  to  any  extension  of  time,  does  not  even  give  the  defend- 
ants permission  to  delay,  and  contains  nothing  which  would  for- 
bid them  from  demanding  a  delivery  of  the  flour  on  the  10th. 
That  letter  requests  the  defendants  by  return  mail  to  fix  a  day 
when  they  will  be  able  to  deliver  the  flour.  This  the  defendants 
decline  to  do.  It  is  impossible  therefore  to  maintain  the  posi- 
tion that  the  time  for  the  delivery  of  the  flour  was  extended 
either  by  permission  or  contract  on  the  part  of  the  plaintiffs. 
It  cannot  therefore  be  claimed  that  the  contract  set  forth  in 
either  of  the  four  last  counts  is  made  out  by  any  proof  extending 
the  contract  set  forth  in  the  first  count,  wore  such  proof  admissi- 
ble for  that  purpose,  and  there  can  be  no  pretense  that  any  such 
original  contracts  are  proved.  As  to  the  first  count,  the  court 
found  that  there  was  no  breach  by  the  defendants  of  the  contract 
set  forth  in  that  count,  inasmuch  as  he  finds  that  the  time  for  the 
delivery  of  the  flour  mentioned  in  that  contract  was  extended  by 
agreement  between  the  parties  until  the  1st  day  of  Oct.  1853. 
Consequently  the  recovery  cannot  be  sustained  under  that  count. 
The  judgment  cannot  be  sustained  under  the  1st  count  (which 
is  the  only  one  in  any  measure  sustained  by  the  proof)  on  the 


SCnENECTADY— MAY,  1853.  47 

Clark  V.  Dales. 

ground  that  the  proof  showed  an  excuse  for  the  plaintifFs  not  1  ic- 
ing ready  and  willing  to  pay  for  the  flour  at  the  time  and  place 
mentioned  in  that  count,  for  the  reason  that  proof  of  a  fact  not 
pleaded  is  unavailing.  {Field  v.  The  Mayor  ^c.  of  Neio  York, 
2  Seld.  179.)  In  order  to  recover  under  that  count,  the  allega- 
tion in  the  count  that  the  plaintiff's  were  ready  and  willing,  &c. 
should  be  proved.     ( Vail  v.  Rice,  1  Selde??,,  155.) 

III.  There  was  no  contract  for  the  sale  and  delivery  of  the 
Hour  consummated.  It  is  not  pretended  that  an  agreement  was 
consummated,  unless  it  be  by  the  plaintiff's'  letter  of  the  31st  ul' 
August,  1853.  Upon  the  question  of  consummating  a  contract 
by  written  correspondence,  the  following  principle  is  laid  down 
by  Chitty  in  his  General  Practice,  vol.  1st,  page  118,  in  wLich 
he  says :  ''  If  the  negotiation  is  by  letter  and  the  last  iciier 
suggests  any  new  or  further  proposition  requiring  some  CGiQiriu- 
nication  from  the  other  party  to  complete  the  transaction^  then 
no  complete  agreement  is  constituted."  {See  also  Slayrnaker  v. 
Irwin,  4  Whart.  369-80.)  The  proposition  on  the  pari  oi  the 
defendants  to  sell  is  contained  in  th  iir  letter  of  Aug.  cO.  The 
proposition  is  in  these  words  :  "  "Wt  will  engage  to  furnish  you 
a  boat  load  of  flour  last  of  next  weel^  same  quality  sent  Gilchrist 
&  Mozer,  at  $4,  7s  6c.  free  to  boat."  The  plaintiff's'  answer  to 
this  proposition  is  in  their  letter  of  August  31,  and  in  the  fol- 
lowing language :  "  We  will  take  the  boat  load  of  flour  as  per 
your  proposition  in  yours  of  the  30th  inst.  Please  say  to  us 
how  we  shall  remit."  This  question  has  never  been  answered. 
It  will  not  be  contended  that  the  plaintiff's  were  not  entitled  to 
an  answer  to  this  inquiry,  nor  but  that  the  defendants  were  at 
liberty  to  reply  demanding  payment  by  drafts  on  New  York  or 
in  specie,  at  the  time  of  delivery.  It  is  clear  that  if  the  plain- 
tiff's were  entitled  to  an  answer  to  their  questions  they  had  a 
right  to  accept  or  reject  the  answer.  Otherwise  their  right  to 
an  answer  would  be  nugatory.  The  plaintiff's  being  entitled  to 
an  answer  could  not  of  course  have  been  made  liable  for  non- 
acceptance  of  and  non-payment  for  the  flour  until  such  answer 
was  received.  As  it  is  evident  therefore  that  owing  to  the  state 
of  the  correspondence  the  defendants  have  never  been  in  a  situ- 


48  CASES  IN  THE  SUPREME  COURT. 

Clark  V.  Dales 

ation  when  they  could  have  maintained  an  action  against  tha 
plaintiffs  for  non-acceptance  and  non-payment  for  the  flour,  had 
they  tendered  it  on  the  10th  of  September,  agreeable  to  then- 
proposition  of  the  30th  of  August  or  at  any  other  time — it  fol- 
lows that  the  plaintiffs  cannot  maintain  their  action  arising  out 
of  the  same  correspondence.  To  hold  otherwise  would  be  to  dis- 
card the  principle  of  mutuality  in  contracts,  and  to  present  the 
legal  anomaly  of  a  contract  of  sale  in  which  performance  may  be 
enforced  on  the  part  of  the  seller  without  any  corresponding  ob- 
ligation on  the  part  of  the  purchaser.  The  minds  of  the  parties 
had  not  met  as  to  the  time  and  manner  of  payment.  In  the 
opinion  of  the  court  it  is  said  that  "  the  law  fixed  the  time  and 
manner  of  payment."  It  is  respectfully  submitted  that  the  law 
never  fixes  the  time  or  manner  of  payment,  except  when  the  con 
tract  is  completed  and  is  silent  in  that  respect.  Tc  sjlj  there- 
fore that  the  law  had  fixed  the  time  and  manner  of  paj-.r.ent  in 
that  stage  of  the  opinion  has  the  appearance  of  assuming  a  con- 
clusion.. If  the  letter  of  the  plaintiffs  of  the  31st  Augxisi  had 
not  been  of  a  character  calling  for  a  reply  which  might  h:ive  led 
to  a  breaking  off  of  the  negotiation  (which  seemed  apparent  and 
to  be  admitted  in  the  opinion)  the  contract  would  have  been 
complete,  and  the  law  would  then  have  fixed  the  time  and  i::i.::n- 
ner  of  payment.  The  plaintiffs,  by  the  inquiry  put  to  the  -ia- 
fendants  in  their  letter  of  31st  of  August,  prevented  the  )a.\-:' 
from  fixing  the  time  and  manner  of  payment;  and  thereby  re- 
served to  themselves  the  right  of  determining  the  time  and  man- 
ner of  payment  by  express  agreement  w'ith  the  defendants.  If 
this  action  had  been  one  against  the  plaintiffs  for  not  accepting 
and  paying  for  the  flour,  it  would  be  unsafe  and  consequently 
unsound  to  hold  that  the  inquiry  was  made  by  the  plaintiffs  with 
no  object  to  their  own  benefit  or  convenience,  in  the  absence  of  all 
testimony  warranting  such  a  conclusion  ;  especially  when  it  ia 
apparent  that  the  answer,  or  their  acceptance  or  rejection  of  it, 
might  have  relieved  them  from  the  onerous  duty  which  otherwise 
the  law  would  have  imposed  upon  them,  of  paying  the  whole 
amount  of  the  purchase  money  in  cash  at  the  time  of  the  deliv- 
ery of  the  flour.     It  need  not  be  said  that  the  same  rules  of  con- 


SCHENECTADY— MAY,  1855.  49 


Clark  V.  Dales. 


struct  ion  hold  in  an  action  brought  by  them.  The  following 
doctrine  is  laid  down  by  Mr.  Chitty  in  his  General  Practice,  at 
page  118  :  "  When  the  parties  have  contracted  for  themselves, 
no  term  or  stipulation  not  expressed  will  be  superadded  by  the 
court,  although  the  court  might  readily  conjecture  what  the 
parties  intended  or  what  would  be  reasonable.  For  courts  are 
to  construe,  not  to  make,  contracts  for  parties  which  they  have 
omitted  to  make  for  themselves."  The  languag-e  which  in  legal 
effect  is  given  to  the  plaintiffs'  letter  of  the  31st  of  August,  by 
the  opinion,  is  as  follows  :  "  We  accept  your  proposition  to  sell  at 
S1.94  per  bbl.  parable  in  cash  on  delivery' of  the  flour  next  Aveek 
at  our -boat  in  Jojdan.  But  to  accommodate  you  we  Avill  remit 
ill  any  other  way  Dy  draft  or  otherwise  if  you  desire  it."  Tliis 
would  appear  to  b;>  in  direct  conflict  with  the  well  settled  prin- 
ciples above  laid  down  by  Mr.  Chitty.  The  court  below  finding 
or  deciding  that  the  legal  effect  of  the  letter  is  to  speak  in  the 
language  given  to  it  by  him,  has  virtually  decided  that  no  other 
construction  can  legally  be  given  to  it,  no  matter  how  apparent 
it  may  be  that  the  writer  intended  otherwise.  When  a  writer 
or  speaker  uses  a  given  phraseology,  he  can  never  be  said  in 
legal  effect  to. use  a  different  phraseology.  Whether  he  intends 
to  be  understood  in  a  sense  which  maybe  more  clearly  express- 
ed in  a  different  phraseology,  is  always  a  matter  of  fact  and  not 
of  law.  The  court,  therefore,  clearly  erred  in  holding  as  a  mat- 
ter of  law  that  the  effect  of  the  plaintiffs'  letter  of  August  31, 
was  such  as  is  expressed  by  the  language  above  quoted.  If  any 
effect  is  to  be  given  to  the  supposed  intention  of  the  plaintiffs 
in  making  the  inquiry,  it  is  by  no  means  apparent  that  it  was 
made  by  the  plaintiffs  solely  with  the  view  (as  the  court  sub- 
stantially holds)  of  learning  how  they  can  best  accommodate  the 
defendants  in  the  time  and  manner  of  payment,  when  the  answer 
to  the  inquiry  might  have  been  of  such  a  character  as  would 
protect  the  plaintiffs  or  enable  them  to  protect  themselves 
against  the  possible  necessity  of  obtaining  and  transporting  to 
the  village  of  Jordan  about  $4000  in  specie  in  payment  for  the 
flour.  The  plaintiffs  in  their  letter  of  the  31st  of  August  can 
with  as  much  propriety  be  regarded  as  saying,  "We  will  take 
Vol.  XX.  7 


50  CA^rs  IX  THE  supreme  court. 

Clark  V  Da'es. 

tlie  flour  on  the  terms  expressed  in  your  proposition,  pronile<l 
the  time  Jind  manner  of  payment  or  remittance  will  accoramodat^i 
us,,  of  which  please  inform  us,"  as  using  the  language  which  the 
court  says  '•  in  legal  eifect"  was  used.  That  the  plaintiffs  did  not 
in  fact  intend  what  the  court  says  Avas  the  "  legal  effect"  of  their 
letter  is  apparent  from  their  letters  of  the  5th  and  27th  of  Sept. 
In  the  letter  of  the  5th  they  ask  the  question  again  with  appa- 
rent earnestness, '' How  do  you  want  your  pay  and  when?" 
which  shows  that  they  regarded  themselves  as  still  uninformed 
in  that  particular,  and  is  entirely  inconsistent  with  their  having 
previously  in  substance  or  legal  effect  said  (as  claimed  by  the 
court,)  "  we  accept  your  proposition  to  sell  &c.,  payable  in  cash 
on  delivery  of  the  flour  next  week."  In  the  letter  of  the  27th 
of  Sept.  they  say,  "  as  soon  as  w^e  get  the  bill  we  will  forw-ard 
the  pay,"  contemplating  the  previous  delivery  of  the  flour  on 
board  of  their  boats  and  the  receipt  of  the  bills  by  them  afc  Fort 
Plain  before  "forwarding  the  pay."  This  is  truly  inconsistent 
with  their  having  previously  agreed  to  pay  "  in  cash  doAvn  at 
their  boat  at  Jordan."  It  is  submitted  therefore  that  sucli  was 
not  the  "legal  effect,"  or  the  understanding  of  the  plaintiffs,  of 
their  letter  of  August  31st.  But  whether  such  was  or  was 
not  the  intention  of  the  plaintiffs  is  not  the  true  question  to  be 
decided.  It  is  this  :  Does  it  appear  from  the  letters  themselve« 
80  clear  that  it  may  be  treated  41s  a  matter  of  law,  that  the  plain- 
tiffs were  not  entitled  to  an  answer  to  the  inquiry  put  in  their 
letter,  or  if  entitled  to  an  answer  that  it  must  of  necessity  have 
been  such  in  its  legal  effect  as  not  to  continue  the  negotiation 
open  ?  But  it  seems  evident  that  they  were  entitled  to  an  an- 
swer, and  that  the  effect  of  the  answer  might  have  been  such  aa 
to  leave  the  contract  open,  seems  to  be  equally  apparent  and  ad 
mitted  by  the  opinion.  It  will  be  conceded  that  the  letters  prior 
to  and  including  that  of  August  31,  are  to  be  put  together  as 
making  one  written  instrument.  The  question  arises,  do  they 
make  a  finished  or  perfect  instrument  ?  Justice  Story,  in  Powell 
atid  wife  v.  The  Brinford  Mamifacturing  Company,  justly 
remarks,  that  "  it  is  dangerous  to  bolster  up  imperfect  instru- 
ments by  conjectures  and  inferences."     {!See  also  Rawle  on  Cov- 


SCHENECTADY— MAY,  1855.  51 


Clark  v.  Dales. 


enants  for  Title,  p.  109.)  It  is  evident  that  the  writing  in  this 
ease  cannot  be  treated  as  a  perfect  instrument  unless  by  infer- 
ring, as  the  court  have  done,  the  object  of  the  inquiry  of  the 
plaintiffs,  in  their  letter  of  August  31,  and  that  of  a  particular 
character,  when  it  is  possible  and  more  than  probable,  that 
their  real  object  was  one  of  quite  a  different  nature.  Nor  can  it 
be  treated  as  a  contract  without  resorting,  as  the  court  have 
found  it  necessary,  to  the  "addition"  of  "  terms  and  stipulations 
not  expressed,"  thereby,  in  violation  of  the  rule  above  quoted 
from  Chitty's  General  Practice,  "  making  a  contract  for  the  par- 
ties which  they  have  omitted  to  make  for  themselves."  Inas- 
much therefore  as  the  inquiry  of  the  plaintiffs  in  their  letters  as 
to  the  time  and  manner  of  payment  were  never  answered  by  the 
defendants,  it  cannot  be  said  that  their  minds  had  ever  met  on 
that  point,  and  consequently  no  final  agreement  was  constituted. 
It  is  evident  that  after  an  agreement  has  been  once  perfected  it 
is  not  in  the  power  of  any  one  of  the  parties,  by  any  thing  he 
may  say  or  do,  to  re-open  it ;  and  it  is  one  of  the  most  certain 
modes  of  testing  the  question  whether  a  negotiation  has  ripened 
into  a  contract,  to  determine  whether  it  is  still  in  the  power  of 
any  one  of  the  parties  to  propose  terms  or  reject  those  offered. 
The  court,  at  fol.  100,  say  that  "If  the  defendants  had  answered 
by  proposing  payment  in  specie,  it  might  have  left  the  contract 
open."  While  this  is  too  plain  a  proposition  to  be  denied,  it 
seems  to  be  equally  plain,  that  as  one  of  the  parties  had  it  in  his 
power  to  •'  open  the  contract,"  or  in  other  words  to  keep  it  open, 
no  complete  agreement  had  been  perfected.  When  a  contract 
should  be  in  writing,  to  render  it  valid,  and  when  it  is  sought  to 
be  established  by  a  written  correspondence,  the  silence  of  a  par- 
ty on  a  material  feature,  when  interrogated  in  relation  to  it, 
should  not  be  so  construed  as  to  render  it  a  substitute  for  what 
ought  to  be  in  writing.  Such,  however,  would  seem  to  be  the 
view  taken  by  the  court  of  the  defendants'  letter  of  the  1st  of 
Sept.  in  answer  to  the  plaintiffs'  of  the  31st,  which  was  silent 
as  to  the  inquiry  of  the  plaintiffs  in  their  letter.  The  court 
then  says  that  the  "  contract  is  recognized,"  and  that  "  the  de- 
fendants intimate  by  their  entire  silence  their  desire  and  inten- 


52  CASES  m  THE  SUPREME  COURT. 

Clark  V.  Dales. 

tion  to  permit  that  part  of  the  bargain  [terms  or  time  of  pay- 
ment] to  remain  as  the  law  made  it,  and  the  agreement  therefore 
remained  complete  as  before."  By  this  it  is  intended  substan- 
tially to  say  that  the  silence  of  the  defendants  upon  the  subject 
of  the  inquiry  put  b}^  the  plaintiffs,  is  equivalent  to  an  assertion 
on  their  part;  they  desired  the  term  of  payment  to  be  "cash 
down  at  the  time  and  place  of  delivering  the  flour."  It  is  sub- 
mitted that  such  inference  is  inadmissible.  But  if  such  inference 
can  be  drawn  from  the  silence  of  the  defendants  in  their  letter 
of  Sept.  1st,  it  is  evident  that  the  plaintiffs  did  not  so  regard  it, 
as  they  repeat  the  same  inquiry  in  their  letter  of  the  3d  of  Sep- 
tember, answering  the  defendants'  letter  of  the  1st  of  September. 
There  is  no  pretense,  therefore,  for  saying  that  the  minds  of  the 
parties  had  met  on  that  subject,  because  if  the  silence  of  the  de- 
fendants in  their  letter  of  the  1st  of  Sept.  is  to  be  regarded  (as 
the  court  substantially  have  held)  as  equivalent  to  an  assertion 
on  their  part  "  that  they  claim  the  privilege  of  demanding  cash 
at  the  time  of  delivery,  it  certainly  cannot  be  said  that  the 
plaintiffs  acquiesced  in  such  assertion  ;  otherwise  they  would 
not  have  again,  in  their  letter  of  the  5th  of  September,  repeated 
the  inquiry,  "  How  do  you  want  your  pay,  and  when  ?"  The 
observation  of  the  court  that  the  defendants'  letter  of  the  1st  of 
Sept.  recognized  the  "contract,"  and  that  the  defendants'  omis- 
sion to  answer  "left  the  agreement  complete  as  before,"  may  be 
regarded  as  prematurely  assuming  that  a  contract  or  agreement 
had  been  perfected. 

IV.  The  measure  of  damages  was  erroneous.  The  rule  on 
this  subject  is  correctly  laid  down  by  the  court  below,  but  the 
error  consists  in  fixing  the  1st  day  of  October,  instead  of  the 
10th  day  of  September,  as  the  time  at  which  the  flour  Should 
have  been  "  delivered  by  the  contract,"  admitting  that  a  con- 
tract resulted  from  the  correspondence  closing  with  the  letter  of 
Aug.  31,  1853.  There  can  be  no  pretense  for  saying  (under 
the  rule  adopted  by  the  court  below)  that  the  difference  be-  ■* 
tween  contract  price  and  value  on  the  1st  of  October  is  the 
measure  of  damages,  unless  the  time  for  the  delivery  of  the 
flour  had  been   extended  to  that   date   by  a  contract  mutually 


SCUEXECTADY— MxVY,  1855.  53 

Clark  V.  Dales. 

abligatory  upon  both  parties,  so  that  if  the  jrice  of  flour  had 
heen  less  on  the  1st  of  October  than  on  the  10th  of  September, 
the  difference  in  value  at  that  time  would  still  have  governed. 
That  such  a  result  could  arise,  from  the  nature  of  the  transac- 
tion between  the  parties,  will  not  be  seriously  contended.  But 
such  would  be  the  result  if  a  valid  contract  extending  the  time 
to  the  1st  of  October  had  been  made.  There  is  not.  however, 
any  proof  of  such  a  contract.  The  plaintiffs  have  not  only  re- 
frained from  making  such  an  extended  contract,  but  from  even 
giving  the  defendants  permission  to  enlarge  tlie  time  spoken 
of  in  the  defendants'  letter  of  30th  of  August ;  so  that  they 
have  never  for  a  moment  since  the  10th  of  September,  been 
prevented  from  demanding  the  flour  and  recovering  for  its  non- 
delivery, provided  the  alleged  original  contract  was  valid.  But 
if  a  dispensation  to  the  defendants  from  a  strict  performance 
of  the  contract  (if  any)  as  to  the  time  of  the  delivery  of  the 
flour  had  been  given  by  the  plaintiffs,  the  measure  of  damages 
in  case  of  final  non-performance,  would  relate  back  to  the  time 
of  performance  mentioned  in  the  contract.  Such  seems  to  be 
the  law  as  laid  down  in  the  case  of  Hashroudc  v.  Tappen, 
(15  John.  200.) 

V.  The  court  below  erred  in  receiving  in  evidence  the  letters 
dated  after  the  1st  of  September,  1853.  for  the  reasons  specified 
in  the  objection.  They  are  no  evidence  of  an  extension  of  time, 
(for  which  object  they  were  offered.)  The  letter  of  the  3d  of 
September  states  a  probable  inability  to  deliver  the  flour  as  soon 
■as  expected.  The  plaintiffs'  letter  of  the  5th  of  September,  in 
answer,  consents  to  no  delay,  but  in  reference  to  a  delay  asks 
the  defendants  to  fix  some  day  when  they  shall  have  the  boat 
at  Jordan,  which  certainly  is  no  consent  to  a  delay.  The  de- 
fendants in  their  letter  of  the  10th  of  September  are  not  able 
to  fix  upon  a  day,  but  say  they  will  do  so  the  beginning  of  the 
week,  but  fail  to  do  so.  This  is  the  defendants'  last  letter. 
Where  then  can  evidence  be  found  of  even  a  permission,  much 
less  a  contract,  to  extend  the  time  of  the  delivery  of  the  flour 
to  the  10  th  of  October,  or  any  other  time  ?    {Hashrouck  v.  Tap- 


54  OASES  IN  THE  SUPREME  COURT. 

Clark  V.  Dales. 

f)0}t,  15  John.  200.)     This  evidence  has   influenced  the  court, 
as  the  report  is  based  upon  an  extended  contract. 

VI.  The  court  below  erred  in  receiving  the  evidence  of  Hop- 
craft,  objected  to  by  the  defendants'  counsel.  If  this  request 
of  S.  H.  Dales  had  been  made  prior  to  the  10th  of  September, 
(the  time  of  the  expiration  of  the  alleged  original  contract,) 
such  evidence  might  be,  in  connection  with  other  evidence,  ad- 
missible to  show  a  dispensation  by  the  plaintijBFs  to  the  defend- 
ants from  a  strict  performance.  But  this  simple  r-equest,  stand- 
ing alone,  and  without  proving  or  offering  to  prove  the  plaintiffs' 
assent  to  it,  and  more  than  all,  after  the  alleged  original  contract 
had  been  broken,  can  furnish  no  evidence  of  an  extension  of 
such  contract,  much  less  of  its  revival. 

VII.  The  court  below  erred  in  allowing  the  evidence  of 
Boardman  as  to  the  value  of  wheat  on  the  Ist  day  of  October, 
1853.  The  damages,  so  far  as  the  value  of  the  flour  is  con- 
cerned, are  to  be  determined  by  the  value  at  the  time  of  the 
expiration  of  the  written  contract.     (15  Johii.  200.) 

C.  B.  Cochrane,  for  the  plaintiffs.  I.  The  proof  establishes 
an  agreement  in  writing  between  the  respondents  of  the  one 
part  and  the  appellants  of  the  other  part,  embracing  all  the 
legal  essentials  of  a  contract,  perfect  in  all  its  parts  and  mutu- 
ally obligatory  upon  the  parties.  {Mactier  v.  Frith,  6  Wend. 
103,  115.  Vassar  v.  Camp,  14  Barb.  341,  354.  Brlshmi  v. 
Boyd,  4  Paige,  17.  Chitty  on  Con.  13,  14,  Ith.Atner.  ed. 
1  Parsons  on  Con.  400^  407.)  (1.)  Conceding  this  to  have  been 
a  contract  of  sale,  and  not  for  work,  labor  and  services,  (10  Bar- 
bour, 406,)  it  was  a  contract  in  writing,  and  good  under  the 
statute  of  frauds.  A  contract  required  to  be  in  writing  by  the 
statute  of  frauds  is  valid,  though  subscribed  only  by  one  party, 
if  the  party  to  be  charged.  (Chit,  on  Con.  71.  2  Cables,  117. 
16  Wend.'  -^Q^.)  A  letter  of  acceptance  referring  to  one  con- 
taining the  proposition,  is  a  perfect  compliance  with  the  statute ; 
so  an  offer  by  letter,  if  accepted,  though  acceptance  be  by  parol ; 
so  also,  letters  constitute  a  valid  asreeraent  in  writing,  though 
3  formal  agreement  in  writing  is  contemplated  by  the  parties. 


SCHENECTADY— MAY,  1855  ^^ 

Clark  r.  Dales. 

{Chit,  on  Con.  397.)  The  negotiation  in  this  case  was  con- 
ducted and  the  contract  consummated  by  letter,  a  mode  which 
the  law  recognizes.  The  elements  of  a  valid  contract  are  the 
same,  whatever  be  the  mode,  and  these  are  well  defined  and 
entirely  settled.  There  must  be  parties  capable  of  contracting ; 
there  must  be  a  subject  matter,  or  something  to  contract  about ; 
there  must  be  mutuality,  a  consideration,  and  a  concurrence  of 
mind.  There  must  be  a  proposition  on  one  side  and  an  assent 
to  it  on  the  other,  and  the  assent  must  embrace  all  the  essen- 
tial terms  of  the  proposition,  without  addition  or  limitation. 
"  Where  parties  are  together  chaffering  about  an  article  of  mer- 
chandise, and  one  expresses  a  present  willingness  to  accept  of 
certain  terms,  that  willingness  is  supposed  to  continue,  unless  it 
is  revoked,  to  the  close  of  the  interview  and  negotiations  on  the 
same  subject,  and  if  during  this  time  the  other  party  says  he 
will  take  the  article  on  the  terms  proposed,  the  bargain  is  there- 
by closed."  So  where  a  proposition  is  sent  by  letter,  the  prop- 
osition is  held  to  remain  open,  presumed  to  be  continually 
repeated,  until  the  period  of  acceptance,  and  the  moment  the 
other  party  deposits  in  the  post  office  a  letter  accepting  the 
proposition  upon  the  terms  proposed,  a  bargain  is  struck,  and 
the  contract  is  complete  and  obligatory  between  the  parties 
(4  Pain-e,  17.  6  Wend.  103,  115,  a7id  all  the  cases  Jlrsi 
above  cited.)  (2.)  Another  rule  is,  that  it  is  not  at  all  material 
by  which  of  the  parties  to  an  agreement  the  words  which  make 
it  one  are  spoken.  The  intent  governs,  and  if  this  be  clear,  and 
expressed  with  sufficient  definiteness,  it  is  enough.  (1  Met.  93.) 
And  the  subsequent  acts  and  conduct  of  the  parties  are  com- 
petent evidence  to  show  such  intent,  and  confirm  and  ratify  the 
contract.  (1  Cnsh.  89.  13  Johji.  294.  "  6  Wend.  122,  123.) 
Still  another  rule  is,  that  all  the  conditions  of  a  contract,  in  or- 
der to  its  binding  obligation,  need  not  be  expressed ;  where  not 
expressed  the  law  implies  them.  For  instance,  a  promissory 
note  need  not  express  the  rate  of  interest,  or  "  value  received," 
nor  a  contract  of  sale,  when  payment  is  to  be  made,  or  in  what 
currency,  or  where  the  thing  sold  shall  be  delivered,  or  the 
precise  time  of  delivery.     Where  in  these  respects  the  contract 


t)6  CASES  IN  THE  SUPREME  COURT. 

« . — _ — . — . 

Claik  V.  Dales. 

is  silent,  the  law  comes  in  and  fills  up  tlie  blanks,  and.  de- 
clares the  intent  of  the  parties.  (3.)  Tested  by  those  rules  of 
law,  which  are  familiar  and  well  settled,  was  there  a  contract 
proved  between  these  parties  such  as  the  law  will  enforce  1 
Under  date  of  August  29,  the  plaintiffs,  residing  at  Fort  Plain, 
wrote  to  the  defendants,  residing  at  Jordan,  and  propounded  the 
following  question  :  "  How  low  will  you  sell  us  a  boat  load  of 
flour  at  your  mill,  to  be  same  quality  as  that  you  sold  to 
Messrs.  Gilchrist  &  Mozer  a  few  days  since,  and  to  be  delivered 
some  time  next  week  ?"  To  this  the  defendants  replied  the 
next  day,  August  30th,  and  submitted  for  our  acceptance  the 
following  proposition  :  "  We  will  engage  to  furnish  you  a  boat 
load  of  flour  the  last  of  next  week,  same  quality  sent  Gilchrist 
&.  Mozer,  at  ^4.7-6,  free  to  boat.  Should  you  decide  to  have 
it,  let  us  know  by  return  mail,  that  we  may  make  our  arrange- 
ments accordingly."  By  return  mail  the  plaintiffs  answered : 
"  Gents  :  We  will  take  the  boat  load  flour  as  per  your  proposi- 
tion in  yours  of  the  80th  inst."  Here  was  a  literal  acceptance 
ofthe  very  terms  of  the  proposition,  without  increase  or  diminu- 
tion. The  two  make  a  perfect  contract  in  writing.  It  is  difii- 
cult  to  conceive  of  a  plainer  case.  The  minds  of  the  parties  had 
met  as  to  quantity,  quality,  price,  time  and  place  of  delivery, 
and  as  to  the  time  and  manner  of  payment,  for  that  is  fixed  by 
the  law.  The  law  says,  the  agreement  was  cash  on  delivery  of  the 
flour  at  the  plaintiffs'  boat  at  Jordan  ;  and  had  the  words  "  cash 
on  delivery"  been  expressed  in  the  proposition,  the  contract  in 
this  respect  would  have  been  no  clearer,  or  better  understood  by 
the  parties.  Do  the  court  doubt  that  both  of  these  parties  per- 
fectly well  understood,  as  business  men,  that  hj  the  agreement 
the  terms  were  to  be  cash  on  delivery  ?  Did  not  the  defend- 
ants know  that  by  the  contract  they  had  made  they  would  be 
entitled  to  cash  on  delivery  ?  Did  not  the  plaintifts  know  that 
ihey  must  pay  cash  on  delivery  ?  The  law  says  they  knew  it, 
and  they  knew  it  in  fact.  Then  their  minds  met ;  the  plain- 
Mffs'  letter  of  acceptance  in  no  way  departed  from  the  terms  of 
the  offer,  or  added  to  it.  It  is  manifest  by  the  very  tenor  ofthe 
reply  that  the  plaintiffs  intended  to  close  in  with  the  offer  at 


SCnENECTADY— MAY,  1855.  57 

Clark  V.  Dales. 

a  single  dash  of  the  pen,  which  they  did,  and  closed  the  ac- 
ceptance by  a  period.  Having  accepted  the  whole  proposition, 
and  nothing  else,  they  then,  by  way  of  a  new  paragraph,  go 
on  to  state  the  probable  day  of  the  next  week  when  their  boat 
would  be  at  Jordan.  The  words,  "be  sure  the  quality  of  the 
flour  is  uniform  and  such  as  you  propose  to  give  us,  and  put  up 
in  good  packages,"  are  no  part  of  the  acceptance,  and  were 
never  meant  or  regarded  as  qualifying  either  the  offer  or  accept- 
ance, as  is  manifest  from  the  subsequent  acts  and  conduct  of  the 
parties.  But  even  if  a  part  of  the  acceptance,  it  does  not  affect 
its  absolute  character.  It  was  saying  simply,  let  the  flour  be 
uniformly  of  the  same  quality  as  that  sold  to  Gilchrist  &  Mo- 
zer,  as  you  have  agreed  it  should  be  ;  not  some  better  and  some 
worse.  It  was  merely  a  request,  simply  saying  fulfill  your 
contract.  But  the  plaintiffs,  after  the  contract  was  complete, 
write,  "please  say  to  us  how  we  shall  remit :"  and  it  is  contend- 
ed that  this  shows  that  the  time  and  manner  of  payment  was 
still  an  open  question,  and  hence  there  was  no  contract.  This 
is  not  the  correct  interpretation,  nor  the  one  which  the  parties 
have  by  their  conduct  put  upon  it.  The  plaintiffs  by  this  lan- 
guage did  not  and  could  not  reserve  to  themselves  any  thing. 
The  words,  "  please  say  to  us  how  we  shall  remit,"  were  pre- 
cisely equivalent  to  saying  "  command  us  as  to  how  we  shall 
remit,"  we  have  agreed  to  pay  and  expect  to  pay  cash  on  de- 
liver}', but  if  you  prefer  a  draft  on  New  York  or  any  other 
mode  more  convenient  to  yourselves,  you  have  only  to  command 
us,  we  make  the  suggestion  for  your  accommodation.  The  de- 
fendants did  not  choose  to  change  the  contract  or  command  us 
in  that  respect,  and  understanding  the  agreement  as  they  did, 
the  plaintiffs  went  to  Jordan  with  the  money  in  their  hand. 
But  how  can  the  idea  of  no  contract  be  reconciled  with  the  sub- 
sequent conduct  of  these  defendants  ?  See  subsequent  letters. 
The  defendants,  by  their  letters  and  interviews,  continued  to 
assure  the  plaintiffs,  though  in  the  "midst  of  disappointments," 
that  the  flour  should  be  forthcoming,  that  the  fulfilment  of  the 
contract  was  but  a  question  of  time,  and  thus  not  only  recog- 
nized the  contract,  but  induced  the  plaintiffs  to  expect  this 
Vol.  XX.  8 


58  CASES  IN  THE  SUPREME  COURT. 

Clark  V.  Dales. 

flour,  and  not  look  for  a  supply  in  any  other  quarter.  It  is  too 
late  after  this  to  change  their  ground  and  say  they  were  re\3- 
taken,  there  Avas  no  contract.  They  are  estopped.  (4.)  The 
proof  shows  the  plaintiffs'  letter  of  the  31st  of  August  was  sent 
by  return  mail.  The  plaintiffs'  boat  carried  800  barrels ;  800 
barrels  is  an  ordinary  boat  load.  The  flour  sold  Gilchrist  «fe 
Mozer  was  the  "  Skaneateles  Lake  Mill  Brand,"  a  well  known 
brand. 

II.  Whether  the  minds  of  the  parties  met,  so  as  to  constitute 
a  valid  contract,  was  a  question  of  fact,  and  the  finding  of  the 
judge,  like  the  verdict  of  a  jury,  is  conclusive.  (1  Cush.  89. 
13  John.  294.) 

III.  The  complaint  is  well  drawn,  and  the  facts  therein  stated 
constitute  a  perfect  cause  of  action.  In  an  action  for  non-rlc- 
livery  of  goods  sold,  it  is  sufficient  to  aver  that  the  plaintiffs 
were  always  ready  and  willing  to  receive  and  pay  at,  &c.  Tliis 
the  plaintiffs  have  done.  (1  Parsons,  448,  9,  and  note.  12  John. 
209,  211,  212.  12  Wend.  408.  5  John.  179.)  The  plaintiffs 
not  only  averred  that  they  were  always  ready  and  willing  to 
receive  and  pay  at  the  place  mentioned,  but  proved  it  upon  the 
trial.  "An  averment  that  he  was  always  ready,  necessarily 
relates  to  the  time  of  delivery."  The  complaint  is  according 
to  approved  precedents. 

IV.  It  was  not  necessary  that  the  complaint  should  contain 
an  averment  that  the  time  was  extended,  in  order  to  admit 
evidence  that  the  plaintiffs  at  the  request  and  upon  the  appli- 
cation of  the  defendants,  had  consented  to  or  acquiesced  in  an 
extension  of  the  time  of  delivery.  The  object  of  the  evidence 
was  not  to  show  that  a  new  contract  had  been  made,  or  any 
stipulations  of  the  contract  changed  or  waived,  but  to  show- 
that  the  contract  as  made  was  kept  on  foot  by  the  parties. 
The  general  rule  may  be,  that  an  averment  of  performance 
will  not  be  sustained  by  evidence  of  a  legal  excuse  for  non-per- 
formance. (7  Barb.  169.  8  id.  327.)  But  it  is  submitted,  that 
neither  the  rule  nor  the  reason  of  it,  applies  to  a  case  of  mere 
extension  of  the  time  of  performance,  Avhen  the  objection  comes 
from  the  party  at  whose  request  and  for  whose  accommodation 


SCHENECTADY— MAY,  1855.  /)() 

Clark  V.  Dales. 

the  extension  has  been  granted.  The  reason  of  this  rule  of  plead- 
ing in  the  cases  where  it  applies  is,  that  the  excuse  of  matters 
constituting  it  often  forms  a  material  issue  of  which  the  defend- 
ant has  a  right  to  be  informed  by  the  pleadings.  No  such 
reason  exists  in  this  case.  The  complaint  is  not  that  the  de- , 
fendants  did  not  deliver  the  flour  by  the  10th  of  September,  or 
did  not  deliver  in  time,  by  which  the  plaintiffs  lost  great  gains, 
&c.  The  real  complaint  and  breach  assigned  are,  that  the 
defendants  refused  to  deliver  at  any  time.  We  did  not  get 
the  flour,  and  thereby  lost  great  gains.  This  complaint  is 
abundantly  sufficient  within  the  case  of  Crane  v.  Maynard, 
(12  We)id.  408.)  Besides,  as  the  learned  justice  who  tried 
the  cause,  in  his  opinion  remarks.  "  The  defects,  if  an}'',  are 
those  which  have  occasioned  no  surprise  to  the  defendants,  nor 
prevented  them  from  availing  themselves  of  all  the  grounds  which 
they  could  interpose."  The.  defense,  in  whatever  aspect  it  can 
be  viewed,  is  inequitable,  and  purely  technical,  and  if  neces- 
sary, the  court  will  direct  the  complaint  to  be  amended,  or  deem 
it  amended,  so  as  to  conform  it  to  the  facts  proved.  The  power 
of  the  court,  and  the  propriety  of  its  exercise  in  this  case, 
cannot  be  doubted.     {Code,  §  173.     1  Kernan,  237,  242.) 

V.  The  rule  and  measure  of  damages  were  correctly  applied. 
The  plaintiffs,  at  the  repeated  and  continued  request  of  the 
defendants,  had  indulged  the  latter  by  consenting  to  an  exten- 
sion of  the  time  of  delivery,  as  long  as  it  was  consistent  with 
the  plaintiff's'  rights.  The  defendants  representing  each  time, 
not  that  there  was  no  "legal  contract,"  and  that  they  were 
not  bound  to  delivery,  but  that  in  consequence  of  unforeseen 
obstacles  and  "  disappointments,"  they  could  not  deliver  at  the 
time  promised.  When,  therefore,  the  plaintiffs,  on  the  1st  day 
of  October,  demanded  the  flour  and  tendered  the  price,  they 
were  entitled  to  receive  it.  Consequently  they  are  entitled  by 
way  of  damages,-4;o  the  diff'erence  between  the  contract  price 
and  the  market  value  at  that  time.  (2  iSandf.  127.  9  Wend. 
129,  135.     24  id.  322.) 

YI.  The  objections  made  to  the  introduction  as  evidence  of 
the   several  letters  which  passed    between   the  parties  subse- 


e;0  CASES  IN  THE  SUPREME  COURT. 

Clark  V.  Dales. 

quent  to  the  making  of  the  contract,  are  principally  upon  the 
ground  that  they  were  not  admissible  under  the  pleadings,  no 
extension  of  time  being  averred,  and  hav.e  been  already  suflS- 
ciently  answered.  The  objection  made  to  the  evidence  of  the  wit- 
ness. George  Hopcraft,  rests  upon  no  better  foundation.  An 
extension  of  the  time  for  the  delivery  of  articles  under  a  writ- 
ten agreement,  is  not  a  waiver  of  any  of  its  stipulations,  but 
a  mere  enlargement  for  the  time  of  its  performance,  and  may 
be  proved  by  parol.  {Clntty  on  Con.  111.  9  Wend.  68.  15 
John.  200.  12  Wend.  408.  4  Barb.  G15.)  The  clear  and 
well-reasoned  opinion  of  Justice  Allen  covers  all  the  ground 
presented  by  this  case,  and  renders  an  argument  by  counsel 
quite  unnecessary. 

By  the  Court,  Bockes,  J.  On  a  motion  for  a  new  trial  on 
a  case,  where  the  cause  is  tried  by  the  court  without  jury,  its 
decision  on  questions  of  fact  is  to  be  treated  and  regarded  the 
same  as  would  be  the  verdict  of  a  jury,  or  the  report  of  a  ref- 
eree. {Mann  v.  Witbeck,  17  Barb.  388.'  Osborn  v.  Mar- 
tpiand,  1  Sandf.  S.  C.  R.  457.  Oakley  v.  Aspinwall,  2  Sandf. 
7.  Gilbert  v.  Luce,  11  Barb.  91.)  The  decision  on  the  facts 
must  therefore  be  conclusive  upon  the  court  in  bank,  unless  the 
preponderance  of  evidence  is  so  great  that  the  verdict  of  a  jury 
to  the  same  effect,  on  the  same  testimony,  would  be  set  aside,  or 
unless  there  is  a  total  failure  of  evidence  to  give  the  decisionj 
support,  A  difference  of  opinion  where  there  is  a  conflict  of  ev- 
idence is  not  to  be  indulged,  to  affect  the  verdict  of  a  jury,  the 
report  of  a  referee,  or  the  decision  of  the  court  on  the  facts,  in 
case  of  trial  without  jury.  {Van  Steenbnrgh  v.  Hoffman, 
15  Barb.  28.)  In  this  case,  however,  there  is  no  conflict  of  ev- 
idence. The  proof  is  explicit;  and  the  principal  question  to  be 
considered  is  whether  it  establishes  a  valid  agreement  between 
the  parties. 

The  mode  of  contracting  adopted  by  the  parties  in  this  case 
is  well  recognized  by  law,  and  possesses  great  merit  by  reason 
of  the  perspicuity  and  certainty  generally  attending  it.  Perhaps 
there  is  no  other  mode  equally  convenient,  more  satisfactory  or 


SCHENECTADY— MAY,  1855.  (J )  • 

Clark  r.  Dales. 

less  liable  to  admit  of  misapprehension  or  misconstruction.  In 
the  case  under  consideration  the  facts  are  too  plain  to  admit  of 
doubt  or  mistake.  The  defendants  proposed  to  the  plaintiffs  as 
follows  :  "  We  will  engage  to  furnish  you  a  boat  load  of  flour, 
the  last  of  next  week,  same  quality  sent  Gilclirist  &  Mozer,  at 
$4.  7-6,  free  to  boat."  This  proposition,  dated  and  sent  on  the 
30th  August,  was  answered  by  the  plaintiifs  immediately,  as 
follows  :  "  We  will  take  the  beat  load  flour  as  per  your  prop- 
osition in  yours  of  the  30th  inst."  The  proposition  was  brief  and 
explicit,  and  its  acceptance  clear  and  unqualified.  So  soon  as 
the  letter  of  acceptance  had  gone  beyond  the  plaintiff's'  control, 
the  bargain  was  complete.  Nothing  remained  but  to  carry  it 
into  effect,  and  it  became  mutually  obligatory  upon  the  parties. 
{Mactier  v.  FrU/i,  6  Wend.  103.  Brisban  v.  Boyd,  4  Paige,  17. 
Vassar  v.  Ca7np,  14  Barb.  341.     Slory  on  Con.  §  384.) 

It  is  conceded  that  the  proposition  fixed  the  price,  kind,  qual- 
ity and  quantity  of  the  article,  and  place  of  delivery,  and  it 
might  be  added,  also,  that  it  fixed  the  time  of  delivery,  for  it 
did  so  with  sufficient  certainty.  The  off"er  was  accepted  Avith- 
out  any  qualification.  Tl»e  contract  was  therefore  complete,  and 
could  not  be  rescinded  by  either  party  without  the  consent  of 
the  other.  True,  it  was  silent  as  to  the  time  and  manner  of 
payment,  but  in  such  case  the  law  determines  that.  Payment 
must  be  made  in  such  case  on  delivery,  and  in  legal  currenc}'. 
{Thompson  v.  Ketcham,  8  John.  189.  2  Kent,  496.  Story 
on  Con.  §  803.  N.  Y.  Ins.  Co.  y.  De  Wolf,  2  Cow.  57, 105,  6. 
Chapman  v.  Lathrop,  6  id.  110.  Cornwall  v.  Haight, 
6  Barb.  327.)  The  defendants  were  bound  to  deliver  the  flour, 
and  the  plaintiff's  to  pay  for  it,  each  according  to  the  contract. 

The  letter  of  acceptance  contained  this  inquiry  :  "  Please 
say  to  us  how  we  shall  remit  ?"  and  it  is  contended  that  this 
inquiry  qualified  the  acceptance  of  the  defendants'  proposition. 
The  argument  is  that  if  the  plaintiff's  were  entitled  to  an  an- 
swer to  this  question,  they  had  a  right  to  accept  or  reject  the 
answer,  whatever  it  might  be.  Admit  this,  and  it  proves  noth- 
ing aff'ecting  the  original  proposition  and  its  acceptance.    It  was 


fJ2  CASES  IN  THE  SUPREME  COURT. 

Clark  V.  Dales. 

no  more  than  if  the  plaintiffs,  instead  of  inquiring  how  they 
should  remit,  had  inquired  if  the  defendants  wouhl  exact  gohl 
and  silver  in  lieu  of  bank  bills.  In  Brisbaii  v.  Boyd.  (4  Paige, 
17,)  the  letter  of  acceptance  contained  a  request  that  the 
cjtton  should  be  designated  and  marked  on  joint  account,  and 
that  information  should  be  given  -when  it  was  shipped.  In  that 
<;ase  it  was  insisted  that  there  were  conditions  imposed  upon 
the  acceptance  of  the  proposition.  But  the  chancellor  held 
that  the  letter  was  an  unconditional  acceptance  of  the  offer  to 
which  it  Avas  an  answer ;  and  that  what  was  said  as  to  designat- 
ing; and  marking  the  cotton  and  informinor  them  of  the  time  of 
.shipment,  was  merely  directory  as  to  the  manner  in  which  they 
wished  the  cotton  to  be  sent.  The  case  of  Brisban  v.  Boyd, 
was  much  more  favorable  to  the  view  taken  by  the  defendant's 
counsel,  than  is  the  one  under  consideration ;  for  in  that  case  there 
was  some  propriety  in  the  suggestion  that  the  designating,  mark- 
ing, and  immediate  information,  requested^  entered  into  and 
formed  part  of  the  contract.  But  in  this  case,  the  utmost  farce 
that  can  be  given  to  the  interrogatory  is,  that  the  plaintiffs  by 
a  reply  wished  to  know  whether  the  defendants  would  insist 
upon  and  exact  in  regard  to  payment,  strict  performance  of  the^ 
agreement ;  and  it  may  be  added,  that  the  defendants'  silence 
was,  in  legal  effect,  an  answer  that  they  shoidd. 

But  the  plaintiffs  were  not  legally  entitled  to  any  answer  to 
the  question.  The  defendants  so  understood  it,  and  remained 
silent.  That  they  so  understood  it  is  evident  from  iheir  subse- 
sequent  letters  recognizing  the  agreement  as  closed  and 
binding. 

The  decision  filed  by  Justice  Allen  states  "that  the  time  for 
the  delivery  of  the  said  flour  was,  by  the  agreement  of  the  par- 
ties in  writing,  on  or  about  the  3d  of  September,  extended  for 
a  reasonable  time  until  the  1st  of  October,  1853,"  and  that  such 
extension  was  granted  "  at  the  sole  request  of  the  defendants  ;" 
and  further  "  that  the  plaintiffs  were  at  all  times  ready  and  Avil- 
ling  to  accept,  receive  and  pay  for  the  flour,"  according  to  the 
contract. 

The  contract,  as  evidenced  by  the  proposition  of  the    30th 


SCHENECTADY— MAY,  1855.  g;} 


Clark  V.  Dales. 


August,  (Tuesday)  and  its  acceptance,  the  following  day,  (Wed- 
nesday,) specified  the  time  of  delivery  as  "  the  last  of"  (the  then) 
"  next  week."  On  Thursday,  the  1st  of  September,  one  of  the 
defendants  requests  the  plaintiffs  by  letter  "  to  make  it,"  that 
is  tt^  delivery,  "  as  late  in  the  week  as  they  conveniently  could." 
Two  days  after,  and  on  Saturday  the  3d  September,  the  defend- 
ants adilress  another  letter  to  the  plaintiffs  in  which  they  state 
that  they  Avere  in  the  midst  of  disappointments,  and  that  it 
would  be  impossible  to  get  the  flour  ready  as  soon  as  was  expect- 
ed, but  added  "  it  shall  be  got  out  just  as  soon  as  possible." 
■  The  plaintiffs,  by  letter  dated  the  5th  September,  (Monday) 
acknowledged  the  receipt  of  this  letter,  and  inquired  when  the 
wheat  Avould  be  ready  for  delivery.  This  was  on  Monday  of 
the  week,  the  last  of  Avhich,  by  the  terms  of  the  original  agree- 
ment, the  flour  was  to  be  delivered.  On  Saturday,  the  10th 
of  September,  and  the  last  day  for  the  delivery,  the  defendants 
answer  the  plaintiffs'  letter,  and  say  that  in  the  beginning  of 
the  next  Aveek  they  Avould  be  able  to  inform  them  Avhen  they 
could  deliver  the  flour.  Notwithstanding  the  plain  tiffs  addressed 
to  the  defendants  two  letters,  one  under  date  of  September  20th 
and  the  other  September  23d,  inquiring  when  the  flour  would 
be  ready,  nothing  more  Avas  heard  from  the  defendants  by  letter. 
But  it  seems  that  on  the  22d  or  23d  of  September,  Stephen 
Dales  saAv  one  of  the  plaintiffs,  and  requested  them  to  put  off 
sending  for  the  flour  about  a  week.  At  the  end  of  this  Aveek, 
September  30th,  the  plaintiffs  Avere  at  the  place  of  delivery 
ready  to  perform,  and  on  the  next  day,  October  1st,  made  a 
demand  formally,  in  writing,  for  the  flour,  and  offered  payment. 
Dales  refused  to  deliver  it,  and  gave  as  a  reason  that  "  he  did 
not  consider  there  Avas  a  legal  contract."  The  refusal  Avas  not 
put  on  the  ground  that  the  plaintiffs  had  failed  in  any  respect 
to  fulfill,  but  on  the  ground  that  there  was  no  legal  contract.  It 
has  been  shown  that  there  was,  and  the  defendants,  not  having 
fulfilled  it  and  having  refused  to  perform  it,  must  atone  for  the 
injury  occasioned  by  their  neglect  and  refusal.  By  the  let- 
ter of  the  5th  September,  the  defendants  promised  to  deliA'-er 
as   soon   as   possible ;    and  by  the   letter   of    the  10th   they 


64  CASES  IN  THE  SUPREME  COURT. 

Clark  r.  Dales. 

promised  to  inform  the  plaintiffs  when  they  could  deliver,  and 
on  the  22d  or  23d,  Dales  did  inform  them,  in  substance,  by  re- 
questing them  to  put  off  sending  the  boat  for  the  flour  about 
one  week.  To  all  these  delays  the  plaintiffs  acceded.  It  was 
well  found,  therefore,  that  the  time  of  performance  was  cxt<end- 
ed,  at  the  defendants'  request,  and  with  the  plaintiffs'  consent, 
to  October  1st.  It  was  competent  for  the  parties  by  a  subse- 
quent contract  to  agree  on  such  extension.  {Frost  v.  Everett, 
5  Coil).  497.  Blood  v.  Goodrich,  9  Wend.  68.  Cummings  v. 
Arnold,  3  Mete.  486.  Crane  v.  Maynard,  12  Wend.  408. 
1  John.  Ch.  22.  7  Cowen,  48. 1  id.  249.)  Even  the  time  of  per- 
formance of  a  sealed  instrument  may  be  enlarged  by  parol. 
{Esmond  v.  Van  Benschoten,  12  Barb.  366,  and  cases  cited.) 
But  the  enlargement  of  the  time  of  performance  of  an  agree- 
ment under  seal  should  be  regarded  rather  as  a  waiver  of  strict 
performance,  that  is,  the  parties  consent  to  accept  performance 
at  a  future  day,  and  when  a  party  procures  delay  he  shall  not 
be  allowed  to  urge  it  for  his  own  protection.  (  Young  v.  Hun- 
ter, 2  Seld.  203.)  In  Keating  v.  Price,  (1  John.  Cas.  22,)  the 
action  was  on  a  simple  contract  for  the  delivery  of  staves  on  or 
before  the  1st  of  May.  The  defense  Avas  that  the  plaintiff  had 
extended  the  time  for  delivering  them  until  the  next  spring. 
The  extension  was  held  valid,  and  a  nonsuit  entered.  This 
case  is  referrei  to  and  approved  in  Dearborn  \.  Cross,  (7  Cow. 
48,  50.)  In  Erwin  v.  Saunders,  (1  Cov).  249,)  it  was  held  that 
simple  contracts  in  writing  might  be  varied  by  a  parol  enlarge- 
ment of  the  time  of  performance.  Nor  is  a  new  consideratiori 
necessary  to  give  validity  to  an  agreement  to  extend  the  time  ; 
the  waiver  is  enough  for  that  purpose.  (14  Serg.  tj'  Rawle.  241.) 
The  effect  of  such  enlargement  is  to  substitute  or  adopt  the  ex- 
tended time  for  the  time  specified  in  the  original  contract.  It 
then  stands  as  a  new  agreement,  wdierein  the  mutual  promises 
furnish  a  good  consideration.  {Evans  v.  Thompson,  5  East, 
189,  193.  Hasbrouck  v.  Tappen,  15  John.  200,  204.)  It  is  a 
new  agreement  substituted  for  the  former  one,  by  which  the 
parties  agree  in  all  respects  as  formerly,  except  as  to  the  time 
of  performance,  which  they  then  fix  for  a  future  period.     And 


SCHENECTADY— MAY,   1855.  ^5 


Clark  V.  Dales. 


it  is  under  the  new  substituted  agreement  that  redress  must  be 
sought  in  case  either  should  fail  or  refuse  to  perform. 

It  follows  therefore,  that  on  the  1st  day  of  October,  the  de- 
fendants were  bound  to  deliver  the  flour,  and  the  plaintiffs  to 
pay  for  it.  The  plaintiffs  were  ready  at  the  place,  and  willing 
to  perform  the  contract  but  the  defendants  refused ;  and  this 
brings  us  to  the  question  of  damages. 

It  has  been  shown  that  the  defendants  were  bound  to  deliver 
the  flour  on  the  1st  day  of  October,  and  that  they  refused  to  do 
so.  The  difference  therefore  between  the  contract  price  and  the 
value  of  the  flour  agreed  to  be  delivered  on  that  day,  with  in- 
terest from  that  period,  was  the  true  measure  of  damages. 

It  is  insisted  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action  ;  and  the  point  of  objection  is, 
that  it  does  not  aver  a  readiness  and  willingness  to  pay  at  the 
plaintiffs'  boat.  The  authorities  and  precedents  are  to  the 
point,  that  when  one  agrees  to  sell  and  deliver  at  a  particular 
place,  and  the  other  agrees  to  receive  and  pay,  an  averment  by 
the  purchaser  of  a  readiness  and  willingness  to  receive  and  pay 
at  that  place,  in  case  he  sues  for  a  non-delivery,  is  indispen- 
sably necessary  to  a  good  complaint.  In  this  case  the  contract, 
as  stated  in  each  of  the  five  counts,  was,  to  deliver  the  flour  at 
a  particular  place,  to  wit,  at  the  boat,  at  Jordan,  yet  neither  of 
the  last  four  counts  avers  a  readiness  and  willingness  to  receive 
and  pay  at  that  place.  The  objection,  under  the  old  practice, 
would  have  been  fatal  to  those  counts  if  taken  by  special  de- 
murrer. It -was  suggested  that  the  words  "' as  aforesaid,"  in 
the  first  count,  following  the  averment  of  a  readiness  and  will- 
ingness to  receive  and  pay,  remedied  this  defect  in  that  count ; 
but  it  is  doubtful  whether  those  words,  as  there  used,  are  not 
totally  unmeaning.  But  it  is  quite  unnecessary  to  reason  or 
cite  authorities  on  this  question,  inasmuch  as  each  count,  under 
the  practice  before  the  code,  would  have  been  held  good  after 
verdict.  This  objection  comes  up  like  a  motion  in  arrest  of 
judgment  under  the  former  practice.  On  such  motion  the  ver- 
dict was  deemed  to  cure,  or  supply  the  defects  or  imperfections 
in  the  statement  of  the  case.     {Bayard  v.  Malcolm.,  2  John. 

Vol.  XX.  9 


66  CASKS  JN  THE  SUPREME  COURT. 


Clark  V.  Dales. 


550.  571.  Owens  v.  Morehouse,  1  id.  276.  Lefingicell  v 
White,  1  John.  Cas.  99.  Carpenter  v.  Brown,  6  7?rtr6.  147.'; 
In  the  last  case  cited,  it  was  held  that  the  omission  to  allege  a 
time  and  place  is  not  an  available  objection  to  the  declafationj 
in  arrest  of  judgment  or  on  general  demurrer.  In  Addington 
V.  Allen,  (11  Wend.  374,)  it  was  decided  in  the  court  of  errors 
on  motion  in  arrest  of  judgment,  '•  that  the  facts  which  will 
after  verdict  be  presumed  to  have  been  proved,  are  those  which 
though  entirely  omitted  to  be  stated  in  the  declaration,  are  so 
connected  Avith  the  facts  alleged  that  the  fiicts  alleged  cannot 
be  proved  without  proving  those  omitted."  This  decision  covers 
the  case  under  consideration.  A  readiness  and  willingness  to 
perforin  is  averred,  and  could  not  be  proved,  so  as  to  authorize 
a  verdict  for  the  plaintiffs,  without  also  proving  a  rea.diness  and 
willingness  so  to  do  at  the  place.  Each  count  is  based  on  a 
valid  agreement  as  the  same  is  set  forth  in  the  pleading ;  and  a 
breach  by  the  defendants  is  well  stated  ;  there  is  also  an  aver- 
ment of  performance  by  the  plaintiffs,  but  it  is  imperfectly 
alleged  in  the  particular  specified.  This  statement  makes  jusi; 
the  case  which  a  verdict  is  deemed  to  cure.     {Code,  §  17G.) 

Again,  by  section  176  of  the  code  it  is  provided  that  "  thf, 
court  shall  in  every  stage  of  the  action,  disregard  any  error  or 
defect  in  the  pleadings  or  proceedings  which  shall  not  affect  the 
substantial  rights  of  the  adverse  party;  and  no  judgment  shall 
be  reversed  or  affected  by  reason  of  such  error  or  defect." 

There  is  some  difficulty  in  applying  the  facts  of  this  case  to 
either  count  of  the  complaint.  They  best  apply  to  the  second 
and  fourth  counts.  The  second  count  sets  up  the  original 
agreement,  and  an  extension  of  the  time  of  its  performance  one 
week ;  and  the  fourth  count  sets  up  an  original  contract  to  de- 
liver on  the  1st  day  of  October.  It  is  therefore  but  a  question 
of  variance  between  the  facts  found,  or  proof,  and  the  com- 
plaint. Nor  can  it  be  pretended  that  the  variance  has  actually 
misled  the  defendants  to  their  prejudice,  in  maintaining  theii 
defense  on  the  merits.  {Code,  §  169.)  In  Fay  v.  Grimsteed, 
(10  Barb.  321.)  it  was  held  that  a  variance  between  the  plead- 
ings and  the   proof,  sufficient  to  defeat   the  action   or  destroy 


SCHENECTADY— MAY,  1855.  67 


Clark  V.  Dales. 


tlie  defense,  must  leave  the  case  unproved  in  its  entire  scope 
and  meaning.  The  questions  at  issue  on  the  pleadings  among 
others  were,  as  to  the  extension  of  performance  of  the  original 
contract,  and  also  as  to  the  defendants'  duty  to  deliver  on  the 
1st  of  October,  The  defendants  were,  bj  the  pleadings,  ap 
prised  of  the  plaintiffs'  purpose  to  introduce  evidence  on  those 
questions,  and  hence  had  the  opportunity  to  make  preparation 
for  a  full  defense  on  the  merits  to  the  case  as  proved  on  the 
trial.  The  variance,  therefore,  cannot  be  deemed  to  affect  the 
substantial  rights  of  the  parties. 

Notwithstanding  the  variance  between  the  pleading  and  the 
proof  is  deemed  immaterial,  an  amendment  of  the  complaint  is 
considered  admissible  and  appropriate,  for  the  purpose  of  secur- 
ing certainty  and  harmony  in  the  record.  Section  173  of  the 
code  contemplates  a  case  like  the  present.  It  provides  for  an 
amendment  of  pleadings,  as  well  after  as  before  judgment,  by 
inserting  allegations  material  to  the  case,  or  "  6y  conforming 
the  pleading  or  proceeding  to  the  facts  proved,  when  the 
amendment  does  not  change  substantially  the  claim  or  defense." 
{Bale  V.  Graham,  1  Kernan,  237.)  Whether  the  amendment 
should  be  ordered  at  general  term  and  without  formal  notice  of 
motion  for  that  purpose,  or  on  .notice  as  a  special  motion,  is  "a 
question  of  practice,  not  entirely  settled.  In  Gxinter  v.  Cat- 
lin,  (11  Leg.  Ohs.  209,)  Duer,  J.,  remarked,  "  We  have  now 
indeed  a  large  discretion  in  amending  pleadings,  po  as  to  con- 
form them  to  the  facts  of  the  case  as  disclosed  by  the  evidence, 
and  we  have  not  unfrequently  exercised  this  power  at  a  general 
term,  even  where  no  motion  to  amend  had  been  made  upon  the 
trial ;"  by  which  it  may  be  understood — although  it  does  not 
necessarily  follow  from  the  language — that  a  formal  notice  of 
motion  was  not  required.  But  see  De  Peyster  v.  Wheeler, 
(1  iSandf.  719,  720.) 

In  a  case  like  the  present,  where  the  amendment  is  only  to 
conform  the  pleading  to  the  facts  specifically  found  by  the 
court,  and  Avhere  the  record  furnishes  the  only  grounds  foi 
and  against  the  amendment,  a  motion  is  quite  unneces!5ar3^ 

The  judgment  must  be  affirmed,  with  costs,  with  liberty  tc 


6g  OASES  IN  THE  SUPREifE  COURT. 

The  People  v.  Imlay. 

the  plaintiffs  to  amend  the  complaint.  The  amended  count 
should  set  out  the  original  contract  as  in  the  first  count,  and 
should  aver  an  extension  of  the  time  of  performance  for  a 
reasonable  time,  to  wit,  to  and  until  the  1st  day  of  October. 
1853,  and  a  readiness  and  willingness  to  receive  and  pay  on  that 
day  by  the  plaintiffs,  at  the  boat,  at  Jordan. 

[Schenectady  General  Term,    May  7,  1855.     Bockes,   C. ' L.  Allen  and 
James,  Justices.] 


The  People  vs.  Imlay. 

The  act  of  April  8,  1851.  relating  to  life  insurance  companies  does  not  pro- 
hibit any  citizen  of  this  state  from  applying  for  insurance  to  a  foreign  company 
which  has  not  complied  with  the  act,  on  his  own  account ;  nor  from  doing  so 
by  his  attorney  ;  nor  from  receiving  the  policy  here,  by  mail,  when  issued  in 
another  state  ;  nor,  as  a  consequence,  from  receiving  it  here  through  his  at- 
torney. But  it  prohibits  the  agent  of  a  foreign  company  from  making  such 
delivery. 

The  act  does  not  attempt  to  prevent  a  foreign  insurance  company  which  has  fail- 
ed to  deposit  the  security  required  to  be  given  by  it,  from  insuring  our  citizens ; 
nor  does  it  impose  a  penalty  upon  an  agent  of  such  a  company  for  acting  for 
it,  if  he  acts  out  of  this  state. 

Signing  a  i)olicy  in  Philadelphia,  by  an  insurance  company  located  and  doing 
business  there,  and  sending  it  to  the  applicant,  or  the  attorney  of  the  appli- 
cant, in  New  York,  is  not  a  violation  of  the  statute. 

The  prohibition  is  expressly  limited  to  the  acting  within  this  state  as  agent  of  a 
foreign  insurance  company.  And  the  act  only  intended  it  to  apply  when  the 
actual  agency  was  in  this  state,  and  the  thing  done  was  actually  done  in  this 
state. 

It  is  not  a  violation  of  the  act  for  a  person  in  this  state  to  act  as  attorney  for  an 
applicant  to  a  foreign  insurance  company ;  provided  the  attorney  is  in  good 
faith  acting  only  as  the  attorney  of  the  applicant,  and  not  as  the  agent  of  the 
company,  under  cover  of  an  attorneyship  for  the  applicant. 

The  act  of  April  8,  1851,  was  not  a  violation  of  the  article  of  the  constitution  of 
the  United  States  by  which  the  citizens  of  each  state  are  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  in  the  .several  states. 

An  incorporated  company  is  not  a  citizen,  within  the  meaning  ;  f  that  sectioo 
(Const,  art.  1,  sec.  1.) 


NEW  YORK— MAY,  1855.  gg 


The  People  v.  Imlay. 


MOTION  by  the  defendant,  for  a  new  trial,  upon  a  case.  The 
people  brought  their  action  against  the  defendant,  for  a 
violation  of  the  "act  in  relation  to  all  insurance  companies, 
transacting  the  business  of  life  insurance  within  this  state." 
[Laws  1851,  ch.  95,  p.  167.)  The  3d  section  of  the  act  relates  to 
agents  of  foreign  companies  ;  placing  them  on  the  same  basis  as 
domestic  companies,  and  is  as  follows  :  "  It  shall  not  be  lawful 
for  any  person  to  act  within  this  state,  as  agent  or  otherwise,  in 
receiving  or  procuring  application  for  insurance  in,  or  in  any 
manner  to  aid  in  transacting  the  insurance  business  of  any  com- 
pany or  association,  not  incorporated  under  the  laws  of  this 
state,  until  he  has  procured  a  certificate  from  the  comptroller, 
that  the  company  or  association,  for  which  he  acts,  has  complied 
with  all  the  provisions  of  this  act."  On  the  25th  Sept.  1851, 
the  defendant  was  secretary  of  the  United  States  Insurance, 
Annuity  and  Trust  Company,  located  at  Philadelphia.  This 
company  did  not  comply  with  the  act  of  1851,  by  depositing 
$100,000  with  the  comptroller,  as  security  for  the  policy-holders. 
At  the  time  of  the  passage  of  this  statute,  this  company  were 
carrying  on  business  in  the  city  of  New  York,  having  their  of- 
fice in  Nassau  street.  They  had  a  sign,  with  the  name  of  the 
company,  over  the  door,  which  remained  up  when  the  policy  in 
question  was  issued.  It  was  alleged,  on  the  part  of  the  de- 
fendant, that  this  office  was  only  kept  open  for  the  receipt  of 
premiums  on  old  policies,  the  defendant,  as  secretary,  or  Mr. 
Fisk,  the  actuary,  remaining  in  charge  of  it ;  but  it  appeared 
that  applications  for  policies  were  made  by  four  persons,  at  this 
office,  which  were  received  by  the  actuary  of  the  company,  and 
some  of  the  policies  were  delivered  to  the  parties  by  the  de- 
fendant. The  applications  were  received  by  Mr.  Fisk,  who 
pretended  to  act  as  the  agent  of  the  parties  ;  but  it  appeaired 
he  was,  meanwhile,  the  actuary  of  the  company ;  did  not  re- 
ceive any  compensation  from  the  applicants,  was  supplied  by 
the  company  with  printed  powers  of  attorney  in  blank,  indorsed 
on  the  applications  for  insurance,  designed  only  to  be  used  for 
this  company.  The  defendant  subscribed  his  name  on  the  poli- 
cy as  the  "secretary  or  agent  authorized  to  receive  premiums." 


70  OASES  m  THE  SUPREME  COUET. 

The  People  v.  Imlay. 

was  at  the  office  of  tlie  company  in  New  York  on  the  day  on 
which  the  receipt  for  the  money  purports  to  have  been  signed 
})y  liim  which  was  indorsed  on  Kendrick's  policy.  After  the 
passage  of  the  statute,  the  defendant  proposed  to  Huntington, 
in  reference  to  continuing  the  business,  "  to  go  on,  law  or  no 
law,"  and  declared  that  "  he  would  go  on,  law  or  no  law."  It 
was  proven,  that  the  written  part  of  the  policy  was  in  the  hand- 
writing of  the  defendant,  as  also  his  signature  as  secretary,  and 
that  the  defendant  knew  the  residence  of  the  party,  and  that 
tlie  policy  was  to  be  delivered  in  the  city  of  New  York. 

The  cause  was  tried  at  the  New  York  circuit,  in  April,  1853, 
before  Justice  Edmonds  and  a  jury. 

A  motion  was  made  to  dismiss  the  complaint,  on  the  ground  that 
the  evidence  did  not  sustain  the  charge,  which  motion  Avas  denied, 
and  the  defendant  excepted.  In  order  to  charge  the  defendant 
with  Fisk's  acts,  in  respect  to  this  policy,  the  plaintiffs  proposed 
to  give  in  evidence  the  acts  of  the  defendant  and  Fisk  in  respect 
to  four  other  policies  to  other  persons.  The  evi<lence  was  ob- 
jected to,  admitted,  and  an  exception  taken  by  the  defendant. 
At  the  close  of  the  testimony  the  defendant  asked  the  court  tc 
charge  the  jury,  1.  That  unless  the  jury  found  that  the  United 
States  Insurance,  Annuity  and  Trust  Company- did  business  as 
a  Life  Insurance  Company  in  New  York,  on  the  25th  of  Sept. 
1851,  the  plaintiffs  could  not  recover.  2.  That  unless  the  jury 
found  that  the  defendant  acted  as  secretary  of  said  company  in 
New  York  at  that  time,  the  plaintiffs  could  not  recover.  3.  That 
unless  the  jury  found  that  while  acting  as  such  secretary,  and 
for  said  company,  he  issued  the  policy  in  New  York,  in  Septem- 
ber, 1851,  the  plaintiffs  could  not  recover.  4.  That  unless  the 
jury  found  that  the  policy  was  issued  by  the  defendant  for  a 
premium  paid  to  him  by  Kendrick  in  New  York,  in  September, 
1851,  the  plaintiffs  could  not  recover.  5.  That  unless  the  jury 
found  that  the  defendant  was,  on  the  25th  of  September,  1851, 
a  resident  agent  in  the  city  and  county  of  New  York  of  the  said 
company,  the  plaintiffs  could  not  recover.  6.  That  unless  the 
jury  should  find  that  at  the  time  the  said  company  had  an  agency 
in  the  city  of  New  York,  the  plaintiffs  could  not  recover.    7.  That 


Is^EW  YORK— MAY,  1855. 


The  People  v.  Inilay. 


signing  a  policy  in  Philadelphia,  and  sending  it  to  the  applicani 
or  attorney  of  the  applicant  in  New  York,  was  not  a  violation  of 
the  act  of  1851.  8.  That  it  was  not  a  violation  of  the  act  of 
]  851,  for  a  person  in  New  York  to  act  as  attorney  for  an  appli- 
cant to  a  foreign  insurance  company,  in  applying  for  insurance 
at  the  office  of  the  company,  in  the  foreign  state.  9.  That  if 
the  jury  should  find  that  the  policy  in  question  was  signed  by 
the  defendant  in  Philadelphia,  and  there  mailed  to  Mr.  Fisk 
in  New  York,  and  when  mailed  was  beyond  the  reach  of  the 
defendant,  he  was  not  liable  in  this  action.  The  court  refused 
to  charge  in  any  particular  as  requested,  but  charged  as  follows  : 
"  Our  legislature  passed  a  law  in  1851,  directing  certain  ar 
rangements  to  be  made  by  insurance  companies.  This  com- 
pany had  an  agency  here  before  the  law.  The  company  did  not 
make  the  deposit  required  by  this  law.  Huntington  testified 
that  the  defendant  said  '  he  would  go  on,  law  or  no  law.'  The 
question  then  is,  whether  he  has  gone  on  in  violation  of  law. 
You  must  find  this  fact  in  order  to  convict  the  defendant.  You 
must  find  whether  this  was  or  was  not  a  contrivance  to  avoid  the 
law.  The  question  as  to  whether  the  receiving  of  premiums  on 
old  policies,  is  or  is  not  a  violation  of  the  law,  is  not  raised  here." 
The  judge  here  read  to  the  jury  the  3d  section  of  the  act  under 
which  the  action  was  brought,  and  told  the  jury  it  was  for  them 
to  decide  the  simple  question  whether  the  defendant  had  acted 
in  this  state  in  issuing  the  policy  to  Kendrick.  "  The  defendant 
alleges  he  Avas  bodily  in  Pennsylvania,  and  could  not  act  here, 
although  he  might  have  sent  the  policies  on.  The  whole  of  it  is 
a  question  of  fact  for  j^ou  to  decide.  If  the  defendant  acted  in 
this  matter  in  good  faith,  you  must  find  in  his  favor."  The  judge 
refused  to  charge  upon  the  matters  requested  by  the  defendant's 
counsel,  further  or  otherwise  than  he  had  already  charged.  The 
defendant's  counsel  excepted  to  the  refusal  of  the  judge  to  charge 
as  requested,  and  in  each  particular  as  requested,  and  also  to 
the  judge's  charge  as  given,  in  the  following  respects  :  in  stating 
that  the  question  was  whether  the  defendant  has  gone  on  in  vio- 
lation of  law;  whether  there  was  or  was  not  a  contrivance  to 
avoid  the  law  :   whether  the  defendant  had  acted  in  this  state  m 


72  CASES  IN  TDE  SUPREME  COURT. 

The  People  v.  Imlay. 

issuing  the  policy  to  Kendrick,  and  that  the  whole  of  it  was  a 
question  of  fact  for  the  jury  to  decide. 

The  jury  found  a  verdict  in  favor  of  the  plaintiffs,  for  .f  500. 

D.  D.  Field,  for  the  defendant.  .  I.  The  act  of  1851  is  un- 
constitutional. 

II.  If  the  act  be  constitutional,  its  penalties  attach  only 
upon  an  agent  established  or  situated  in  the  county  where  the 
action  is  brought.  (§  9.)  There  was  no  pretense  that  the  de- 
fendant was  such  an  agent. 

III.  This  being  a  penal  action,  great  strictness  in  respect  to 
the  proof  should  have  been  insisted  on,  and  the  plaintiffs  should 
have  been  required  to  prove  the  charge  precisely  as  laid. 

IV.  The  motion  to  dismiss  the  complaint  should  have  been 
granted,  there  having  been  no  evidence  sufficient  to  warrant  the 
jury  in  finding  the  allegations  true. 

V.  The  evidence  respecting  the  other  policies  was  improperly 
admitted  ;  the  result  being,  that  the  defendant  was  charged 
with  one  act  and  judged  for  another. 

VI.  The  court  ought  to  have  charged  as  requested  by  the 
defendant's  counsel. 

VII.  The  charge  was  erroneous  in  the  particulars  excepted 
to.  It  led  the  jury  away  from  the  precise  issues  before  them, 
into  the  general  question,  whether  the  defendant  had  violated 
the  law,  or  entered  into  a  contrivance  to  avoid  it.  It  was  not  a 
question,  whether  the  defendant  had  acted  in  good  faith,  or 
whether  he  and  Mr.  Fisk  had  engaged  in  a  contrivance  to  avoid 
tlie  law,  or  had  violated  it,  but  whether  the  defendant  had  done, 
in  this  state,  the  particular  act  charged  against  him  in  the 
complaint. 

A.  Oakley  Hall,  district  attorney,  for  the  people.  T.  The 
act,  ch.  95,  Laws  1851,  is  constitutional.  It  is  the  right  of  the 
legislature  of  every  state  to  make  regulations  controlling  indi 
viduals  and  corporations  doing  business  within  its  limits.  This 
act  applies  to  all  corporations,  whether  foreign  or  doinestic,  and 
applies  the  penalties   in    the  only  mode  in    which  they  could 


NEW  YORK— MAY,  1855. 


The  People  v.  Imlay. 


I 


bo  Imposed,  in  order  to  prevent  the  evil  sought  to  be  guarded 
against.  (1.)  No  doubt  can  exist,  nor  was  the  question  suggested 
by  the  defendant's  counsel  at  the  circuit,  as  to  the  constitution- 
ality of  those  provisions  of  the  act  which  related  to  domestic 
companies.  (2.)  The  state  has  the  same  right  to  regulate  and 
prescribe  the  terms  and  conditions  upon  which  all  foreign  com- 
panies may  come  into  this  state  to  transact  business  ;  it  may 
even  prohibit  them  altogether,  in  the  same  manner  in  which  it 
could  prohibit  a  domestic  company.  It  is  as  much  the  duty  of 
the  state  to  protect  its  citizens  from  imposition  from  the  one,  as 
it  is  from  the  other.  "  If  irresponsible  insurance  companies 
may  force  themselves  upon  us  in  defiance  of  our  laws,  state 
sovereignty  is  but  a  name."  (3.)  Nor  is  it  any  objection,  that 
the  law  is  made  to  operate  directly  upon  the  agents  themselves. 
The  corporation  is  beyond  our  reach.  The  agent  is  the  active 
instrument  in  accomplishing  the  illegal  act ;  he  is  the  willing 
instrument  of  the  violation  of  the  law.  The  exemption  claimed 
by  the  defendant  would  give  to  the  citizens  of  other  states 
greater  rights  and  privileges  within  our  borders  than  are  enjoy- 
ed by  our  own  people.  {Bank  of  Augusta  v.  Earle,  16  Peters, 
519,  586.  The  People  v.  Thurher,  13  ///.  R.  564.  8  How. 
U.  S.  R.  490.)  (4.)  To  be  unconstitutional,  a  law  must  be  plain- 
ly and  manifestly  in  collision  with  some  constitutional  provis- 
ion. {Scott  V.  Stuart,  1  Mann.  Mich.  R.  595.  Fletcher  v. 
Peck',  6  Cranch,  87,  122.     Calder  v.  Bull,  3  Dallas,  386.) 

II.  The  act  is  remedial.  It  was  intended  to  provide  a  secu- 
rity for  those  effecting  insurances,  against  the  insolvency  of  the 
companies ;  at  the  time  of  the  passage  of  the  act  the  evil  ex- 
isted to  an  alarming  extent.  Being  a  remedial  statute,  it  should 
be  construed  largely  and  beneficially,  so  as  to  suppress  the  evil. 
Under  the  facts  of  this  case  we  need  only  ask  that  the  words 
be  construed  according  to  their  fair  import.  {Dwarris  on 
Statutes,  735.) 

III.  The  defendant  was  an  agent,  within  the  fair  import  of 
the  words  of  the  act.  (1.)  The  7th  section  of  the  act  of  1849, 
providing  for  the  incorporation  of  insurance  companies,  {Laws, 
V.  441,)  declares  "  the  term  agent  or  agents,  used  in  this  section, 

Vol.  XX.  10 


74  CASES  IN  THE  SUPREME  COURT. 

The  People  r.  Imlay. 

sball  include  any  acknowledged  agent  or  survej'or,  or  any  othei 
person  or  persons  who  shall  in  any  manner  aid  in  transacting  the 
insui'ance  business  of  an  insurance  company  not  incorporated 
)^y  the  laws  of  this  state."  These  acts  are  to  be  construed  to- 
gether, {see  10th  section  of  the  act  of  1851,)  and  the  7th  sec- 
tion of  the  act  of  1849  remains  in  full  force.  (2.)  Any  person 
who  shall  aid  in  transacting  the  business,  is  'made  liable — it  is 
not  limited  to  resident  or  established  agents.  The  bodily  pres- 
ence of  the  agent  was  not  necessary ;  but  it  was  left  to  the  jury 
as  a  question  of  fact  to  say  where  the  defendant  was  at  the 
time  the  policy  was  issued.  It  was  established  by  the  evidence 
that  the  defendant  had  agreed  to  bring  the^  policies  with  him  to 
this  city  from.  Philadelphia,  and  that  he  was  here  on  the  day 
upon  which  the  polic}''  was  delivered.  (3.)  The  bodily  presence 
of  the  defendant  was  not  necessary.  Even  in  criminal  courts  it 
is  well  settled  that  personal  presence  at  the  place  where  a 
crime  is  committed  is  not  indispensable  to  make  one  a  principal 
offender  in  its  commission.  An  offense,  consisting  of  several 
partS;  is  committed  where  the  enterprise  is  consummated  and 
took  effect.  The  defendant  was  "  situated,"  within  the  mean- 
ing and  intent  of  the  act,  in  this  city  ;  he  was  present  by  the 
instruments  used  by  him  to  effect  his  purpose.  (^People  v. 
Adams,  3  Denio,  190.)  (4.)  The  law  will  not  tolerate  any  con- 
trivance or  subterfuge  to  evade  its  provisions,  and  render  it  nu- 
gatory. The  jury  were  instructed  to  find  whether  the  course 
pursued  by  the  defendant  was  a  contrivance  to  avoid  the  law^ 
and  that  if  the  defendant  acted  in  good  faith  in  the  matter,  he 
was  not  liable. 

IV.  The  court,  after  reading  to  the  jury  the  section  of  the 
statute,  under  which  the  action  is  brought,  properly  submitted 
it  to  the  jury  to  find  whether  the  defendant  had  acted  in  viola- 
tion of  its  provisions. 

V.  The  evidence  as  to  the  other  policies  was  properly  admit- 
ted. It  was  competent  to  show  that  the  defendant  did  not  act 
in  good  faith.  Where  the  question  of  the  intent  of  the  party, 
in  the  particular  transaction  with  which  he  is  charged,  is  involved, 
cotemporaneous  acts,  similar  to  the  offense  charged,  are  compe- 


NEW  YORK— MAY,  1855.  75 


The  People  v.  Tmlay. 


teut  to  establish  the  quo  animu.  Such  is  the  rule  in  cases  of 
fraud,  libel,  slander,  and  in  the  criminal  courts,  where  the  in 
tent  with  which  the  party  acted  in  the  particular  transaction  ia 
the  gist  of  the  offense.  {Jackson  \.  Thnmerman^  12  Wend.  299 
1  Phil  Ev.  472, 475.     1  Cow.  S^  HilVs  Notes,  326,  328.) 

VI.  The  charge  was.  in  all  respects,  correct,  and  the  plaintiffs 
are  entitled  to  judgment  upon  the  verdict. 

By  the  Court,  Mitchell,  P.  J.  This  action  was  brought 
atjainst  the  defendant  under  sections  3  and  9  of  the  act  of  1851, 
ch.  95.  The  complaint  alleged  that  the  defendant,  at  the  city 
of  New  York,  on  t^e  25th  of  Sept.  1851,  acted  as  secretary  of 
the  United  States  Insurance,  Annuity  and  Trust  Company,  the 
said  companj'^  as  such  doing  business  as  a  life  insurance  com- 
pany in  said  city,  and  that  the  defendant,  while  so  acting,  issued 
for  said  company  for  a  premium  then  and  there  paid  by  one 
Kendrick,  a  policy  of  insurance  on  the  life  of  Kendrick ;  and 
that  the  company  had  not  deposited  with  the  comptroller 
^50.000,  and  had  not  procured  a  certificate  from  the  comptroller 
that  the  company  had  complied  with  the  provisions  of  the  law 
of  1851. 

The  evidence  showed  that  such  a  policy  was  issued,  at  the 
date  specified,  by  the  above  named  company,  and  that  the  com- 
pany had  not  complied  with  the  law.  That  law  makes  it  un- 
lawful for  any  person  to  act  within  this  state,  as  agent  or 
otherwise,  in  receiving  or  procuring  applications  for  insurance, 
or  to  aid  in  transacting  the  bulsiness  of  any  company  not  incor- 
porated under  the  laws  of  this  state,  until  he  has  procured  the 
certificate  of  the  comptroller  as  above  mentioned ;  and  every 
violation  of  the  act  subjects  the  offender  to  a  penalty  of  $500, 
to  be  recovered  in  the  name  of  the  people,  by  the  district  attor- 
ney of  the  county  in  which  the  compan}'  or  the  agent  is  ''  situ- 
ated ;"  and  in  case  of  non-payment,  the  act  declares  the  party 
offending  shall  be  liable  to  imprisonment  for  a  period  not  ex- 
ceeding six  months,  in  the  discretion  of  any  court  having  cog- 
nizance thereof. 

Wi.-ou  parties  know  what  the  law  is  and  mean  to  violate  it, 


76  CASES  IN  THE  SUPEEME  COURT. 

The  People  v.  Imlay. 

they  endeavor  to  conceal  their  purpose  by  acting  by  indirect 
means.  The  plaintiffs'  theory  was  that  the  defendant  had  ar- 
ranged or  conspired  with  Fisk,  that  they  should  procure  insur- 
ances in  the  city  of  New  York  for  the  company,  of  Avhich  he 
was  secretary,  in  violation  of  the  law.  The  defendant,  to  meet 
this  char 20,  endeavored  to  show  that  it  was  Fisk  who  acted  in 
this  city,  and  that  Fisk  acted,  not  for  the  company,  but  as  the 
special  attorney  of  persons  applying  to  him.  The  question 
then  was,  with  what  object,  what  motive,  were  Fisk  and  the  de- 
fendant acting.  Was  it  with  the  objett  and  motive  of  being  the 
attorneys  of  the  applicants,  or  Avith  the  object  and  motive  of 
getting  policies  for  this  particular  company,.  If  the  last  were 
the  motive,  then  in  fact  they  were  the  agents  of  the  company, 
although  they  should  attempt  to  disguise  it  by  taking  special 
powers  of  attorney  from  each  applicant.  The  plaintiffs  accord- 
ingly proved  that  before  the  act  of  1851  was  passed,  Hunting- 
ton had  been  the  agent  of  the  company,  and  that  he  left  the 
company  because  they  would  not  comply  with  the  law,  and  that 
the  defendant,  the  secretary  of  the  company,  jjroposed  to  him 
to  go  071,  law  or  no  laiv,  and  he  refused.  That  Fisk  had  been 
actuary  of  the  company  ;  that  the  company  continued  Fisk  in 
their  employ  in  an  office  in  this  city,  of  which  they  paid  the 
rent,  and  continued  his  salary  of  $500  a  year ;  that  Fisk  had 
blank  forms  ready  for  the  appointment  of  a  person  as  attorney, 
to  be  signed  by  applicants  for  insurance  ;  and  that  he  procured 
this  policy  and  three  others,  but  did  not  act  as  attorney  for 
any  one  applying  to  amj  other  company  ;  that  he  received  his 
salary,  as  above  stated,  from  the  company'',  but  no  compensation 
from  the  applicants.  The  proof  that  Fisk  acted  as  attorney  for 
a  single  individual  would  be  very  slight  evidence  that  the  act- 
ing as  attorney  was  a  cover,  and  that  he  was  in  reality  the 
agent  of  the  company  ;  but  if  it  could  be  proved  that  he  acted 
in  a  hundred  instances  as  such  attorney,  and  always  on  policies 
to  be  issued  by  this  company  and  by  no  other,  it  would  be  in- 
disputable evidence  that  he  was  in  fact  the  agent  of  the  com- 
pany. The  proof  that  he  so  acted  in  other  instances  than  that 
of  Kendrick  was  admissible,  although  the  proof  is  not  as  strong 


ifEW  YORK- MAY,  1855.  77 


The  People  v.  Imlay. 


I 


as  in  tlie  case  supposed.  The  facts  above  stated  showed  such  a 
connection  between  Fisk  and  Imlay,  and  such  a  purpose  of  Imlay 
to  have  some  one  to  act  as  agent  of  the  company,  "  laAV  or  no 
law,"  as  to  justify  a  jury  in  finding  that  Fisk  was  acting  in  com- 
bination with  Imlay,  or  Imfay  acting  as  agent  of  the  company, 
through  him.  This  was  strengthened  when  it  was  shown  that 
when  Fisk  went  to  Philadelphia  Imlay  took  his  place,  and  re- 
ceived the  premiums  in  two  or  three  other  cases  from  the  appli- 
cants in  this  city.  If  it  had  been  proved  that  in  50  other  cases 
he  had  thus  received  premiums  in  this  city,  the  concert  between 
him  and  Fisk  that  Fisk  should  act  for  him,  or  that  both  should, 
be  agents  of  the  company,  in  this  city,  would  have  been  clearly 
made  out.  In  the  case  of  Kendrick,  Fisk  received  the  money 
in  this  city  and  sent  it  on  to  Philadelphia  and  Imlay  indorsed 
the  policy  acknowledging  the  receipt  of  the  premium  on  the 
19th  or  25th  of  Sept.  1851. 

The  judge  was  requested  to  charge  as  follows,  but  refused  : 

1.  That  unless  the  company  did  business  as  a  life  insurance 
company  in  New  York  on  the  25th  of  Sept.- 1851,  the  plaintiff 
could  not  recover.  This  made  the  precise  day  material,  and 
required  that  the  compan}',  and  not  the  agent  merely,  should 
do  the  act  in  New  York. 

2.  That  unless  the  defendant  acted  as  secretary  of  the  com- 
pany, in  New  York,  at  that  time,  the  plaintiff  could-  not  re- 
cover. This  made  the  time  material,  but  was  intended  to  have 
the  court  decide  that  as  the  complaint  alleged  that  the  deff»i  d- 
ant  acted  as  secretary/  of  the  company,  and  Avhile  so  acting  is- 
sued the  policy,  the  proof  of  his  acting  as  secretary  in  New 
York  was  essential.  The  complaint  would  be  complete  if  it 
omitted  the  description  of  the  office  of  the  defendant,  and  mere- 
ly alleged  that  he  issued  the  policy  in  this  city  for  the  company. 
The  same  answer  may  be  made  to  the  3d  request. 

4.  That  unless  the  policy  was  issued  6y  the  defendant  for  a 
premium  paid  to  him  by  Kendrick  in  New  York,  in  Sept.  1851, 
the  plaintiffs  could  not  recover.  This  made  the  time  material, 
and  assumed  that  the  defendant,  if  in  New  York,  could  not  act 
oy  his  partner  or  agent  in  New  York. 


78  CASES  IN  THE  SUPREME  COUTIT. 

The  People  v.  Imlay. 

5.  That  if  the  defendant  was  not  a  resident  agent  in  ^he  city 
of  New  York  he  was  not  liable.  There  is  no  such  term  as  resi- 
dent in  the  act.  The  word  situated,  as  applied  to  agent  in 
section  9,  refers  to  the  place  where  the  agent  is  when  he  does 
the  business  or  act  complained  of— the  place  which  he  makes 
his  office  for  that  business. 

(3.  That  unless  the  company  had  an  agency  in  the  city  of 
New  York,  the  plaintiffs  could  not  recover.  It  was  enough  if 
the  defendant  acted  as  agent  of  the  company,  although  the 
company  had  no  person  avowing  himself  the  agent  of  the  com- 
pany, or  no  place  belonging  to  it.  This  last  would  be  the 
meaning  of  the  terras  used — an  "agency"  of  the  company. 

7.  That  signing  a  policy  in  Philadelphia  and  sending  it  to 
the  applicant,  or  the  attorney  of  the  applicant,  in  New  York, 
is  not  a  violation  of  the  act  of  1851.  Thi§  probably  was  the 
question  on  Avhich  the  case  turned.  The  judge  read  the  section 
of  the  act,  and  told  the  jury  it  was  for  them  to  decide  whether 
the  defendant  had  acted  in  this  state  in  issuing  the  policy  to 
Kendrick.  This  seems  to  have  been  a  compliance  with  the 
plaintiffs'  request  to  charge.  But  a  majority  of  the  court  is  of 
opinion  that  it  was  so  indefinite  that  it  left  the  jury  under  a 
mistake,  when  they  ought  to  have  been  specially  instructed  as 
to  the  law,  and  allowed  them  to  infer  that  if  the  defendant  had 
no  connection  M'ith  Fisk,  and  issued  the  policy  in  Philadelphia, 
and  in  good  faith  sent  it  on  from  there  to  Kendrick  or  to  Fisk, 
supposing  Fisk  to  be  the  attorney  of  Kendrick  and  not  the 
agent  of  the  company,  still  the  defendant  would  be  liable,  on 
the  idea  that  his  sending  the  policy  to  Ncav  York  was  acting 
here.  The  jury  may  possibly  have  been  so  misled,  as  the  coun- 
sel for  the  plaintiff,  at  the  trial,  (as  he  did  also  on  the  argument 
at  general  term,)  insisted  that  the  last  view  of  the  law  was  cor- 
rect, and  that  the  defendant  was  liable  although  all  he  did  was 
done  in  Philadelphia,  if  he  sent  on  the  policy  from  that  city  to 
this.  There  are  cases  in  which  one  sending  a  letter  or  other 
instrument  from  another  state  into  this  state  w^ould  be  liable  to 
the  criminal  law  of  this  state.  But  these  are  not  cases  in  which 
our  law  recognizes  the  act  as  Uuvful  and  valid  if  done  in  another 


NEW  YORK— ^f  AY,  1855.  79 


The  People  v.  Iralay. 


State,  and  only  aims  at  its  prohibition  in  this  state.  The  act  of 
1851  does  not  mean  or  attempt  to  prevent  an  insurance  compa- 
ny in  Phihidelphia  from  insuring  our  citizens  ;  nor  does  it  pun- 
ish an  agent  of  those  companies  for  acting  for  them  if  he  acts 
out  of  this  state.  It  uses  a  marked  and  peculiar  precaution  in 
the  choice  of  lan^uacre  to  show  its  intent.  It  is,  that  "it  shall 
not  be  lawful  for  any  person  to  act  within  this  state  as  agent 
or  otherwise,  in  receiving  applications  for  insurance,  and  to  aid 
in  transacting  the  insurance  business  of  any  company  not  incor- 
porated under  the  laws  of  this  state,  until "  <fcc.  In  most  pro- 
hibitions of  unlawful  acts  the  prohibition  is  expressed  in  general 
terms  ;  leaving  to  inference  the  intendment  that  the  punishment 
is  only  intended  for  acts  done  in  this  state  ;  but  here  the  pro- 
hibition is  expressly  limited  to  acting  loithin  this  state  as 
agent ;  because  the  law  only  intended  the  prohibition  when  the 
actual  agency  was  in  this  state,  and  the  thing  done  was  actually 
done  in  this  state.  It  meant  to  allow  our  citizens  to  go  to 
Philadelphia  and  get  their  policies  effected  there  and  mailed 
afterwards  here.  The  evil  was,  acting  as  agent  here,  or  effect- 
ing the  insurance  here.  The  latter  was  not  done  here,  when 
the  contract  was  completed  in  Philadelphia  and  was  only  mailed 
to  this  state.  As  soon  as  the  proposal  was  accepted  by  the  com- 
pany', and  the  policy  deposited  in  the  mail,  the  contract  was 
binding.  After  that,  the  forwarding  of  it  to  this  place  (if  there 
were  no  agency  here)  wgis  not  procuring  applications  for  insur- 
ance here,  or  aiding  in  the  transaction  of  insurance  business 
here  ;  nor  would  its  delivery  here  in  such  case,  by  one  acting 
not  for  the  company  but  for  the  applicant,  constitute  either  of 
those  prohibited  acts.  The  act  does  not  prohibit  any  of  our  citi- 
zens from  applying  for  insurance  to  a  foreign  company  on  their 
own  account ;  nor  from  doing  so  by  an  attorney  of  such  citizen  ; 
nor  from  receiving  the  policy  here,  by  mail,  when  effected  abroad  ; 
nor,  as  a  consequence,  from  so  receiving  it  here  through  the 
attorney  of  such  citizen  ;  but  it  does  prevent  the  agent  of  the 
company  making  such  delivery  ;  for  that  would  be  to  "aid^-'  in 
transacting  the  insurance  business  of  such  company.  For  this 
exception  there  must  be  a  new  trial ;  the  costs  to  abide  the  event 


80  OASES  IN  TDE  SUPREME  COURT. 

The  People  v.  Imlay. 

This  last  exception  would  be  the  only  one  necessary  to  de- 
cide, were  it  not  that  there  are  several  other  actions  periding, 
under  this  law,  and  the  decision  of  the  court  was  desired  as  to 
all  the  points,  so  as  to  be  a  guide  in  the  trial  of  those  cases. 

The  8th  request  was,  to  charge  that  it  is  not  a  violation  of  the 
act  for  a  person  in  New  York  to  act  as  attorney  for  an  applicant 
to  a  foreign  insurance  company.  The  opinions  before  expressed 
are  in  favor  of  this  proposition,  provided  the  jury  are  satisfied 
that  the  person  acting  was  in  good  faith  acting  only  as  the  at- 
torney of  the  applicant,  and  not  as  the  agent  of  the  company 
under  cover  of  an  attorneyship  for  the  applicant.  This  was 
probably  what  was  meant  by  the  judge  at  the  circuit. 

The  9th  request  was  that  if  the  policy  was  signed  by  the  de- 
fendant in  Philadelphia,  and  there  mailed  to  Fisk  in  New  York, 
and  when  mailed  was  beyond  the  reach  of  the  defendant,  he 
is  not  liable.  This  would  exempt  the  defendant  even  if  the 
jury  should  conclude  that  the  defendant  was  acting  in  concert 
with  Fisk,  or  through  Fisk  as  his  agent.  It  was  too  broad,  and 
it  would  have  been  wron^  to  have  so  charged. 

It  was  argued  that  the  act  was  in  violation  of  the  article  of 
the  constitution  of  the  United  States  by  which  the  citizens  of 
each  state  are  entitled  to  all  privileges  and  immunities  of  citi- 
zens in  the  several  states.  An  incorporated  company  is  not 
a  citizen,  within  the  meaning  of  this  section,  (sec.  1,  art.  1.) 
Such' a  company  is  a  creation  of  the  state  which  incorporates 
it.  which  has  no  power  to  legislate  for  other  states,  or  to  give 
to  the  artificial  bodies  which  it  creates  powers  to  act  in  other 
states.  Such  companies  act  in  other  states  than  those  which 
incorporate  them,  only  by  the  comity  of  such  otlier  states.  The 
act  takes  from  no  citizen  of  Pennsylvania  any  privilege  which 
it  allows  to  a  citizen  of  New  York.  Neither  can  act  as  agent 
in  the  cases  prohibited  by  the  law.  The  9th  section  of  the  act 
declares  how  the  penalty  shall  be  sued  for,  and  then  adds  that 
in  case  of  non-payment,  the  party  offending  shall  be  liable  to 
imprisonment  for  a  period  not  exceeding  six  months,  in  the 
discretion  of  any  court  having  cognizance  thereof.  This  latter 
clause  seems  to  imply  either  that  the  non-payment  would  sub- 


NEW  YORK— MAY,  1S55.  gl 


The  People  v.  Board  of  Supervisors  of  New  York. 

jcct  the  offender  to  an  indictment,  in  any  court  having  cogni- 
zance of  such  offences,  or  to  a  ca.  sa.  in  the  suit  in  Avhich  the 
penalty  might  be  recovered.  The  law,  in  either  view  of  it, 
woukl  be  consistent  with  our  state  constitution. 

For  the  single  reason  previously  given,  a  new  trial  is  grant- 
ed ;  costs  to  abide  the  event. 

[New  York  General  Term,  May  7,  1855.     Mitchell,  Gierke  and  Coicles. 
Justices.] 


The  People,  ex  rel.  The  Mutual  Life  Insurance  Company  of 
New  York,  vs.  The  Board  of  Supervisors  op  the  City 
AND  County  of  New  York. 

jMutual  Life  Insurance  Companies,  incorporated  previous  to  the  year  1849,  are 
liable  to  taxation  upon  their  accumulations,  as  capital. 

And  where  a  company  of  that  description  having  a  fund,  employed  in  its  business, 
amounting  to  nearly  three  millions  of  dollars,  was  taxed  by  the  assessors  upon 
only  S100,000,  of  i.«rsonal  property,  it  was  held  that  the  tax  commissioners, 
on  reviewing  the  assessment  roll,  had  the  power  to  add  S900,000  thereto,  mak- 
ing the  amount  of  personal  property  belonging  to  the  company,  liable  to  tnxa 
tion,  one  million  of  dollars,  and  that  the  board  of  supervisors  was  right  in 
refusing  to  restore  the  original  assessment,  and  in  confirming  the  judgment  of 
the  commissioners. 

A  judgment,  entered  at  a  special  term,  denying  an  application  for  a  mandamus, 

to  compel  the  board  of  sufjervisors  to  restore  or  reduce  the  assessment  to  the 

sum  of  $100,000,  and  to  apportion  or  fix  the  ta^  upon  that  amount,  instead 

of  one  million  of  dollars,  and  to  correct  the  tax  accordingly,  was  therefore 

affirmed. 
I 

APPEAL,  by  the  relators,  from  a  judgment  entered  at  a  spe- 
cial term,  denying  their  application  for  a  mandamus.  The 
opinions  below  contain  a  full  statement  of  the  facts.  The  follow- 
ing opinion  was  given,  on  deciding  the  motion  at  the  special  term  : 

"  Mitchell,  J.     Most,  if  not  all,  of  our  moneyed  corporations 
had  formerly  a  fixed  capital,  the  amount  of  which  was  specified 
Vol.  XX.  11     ' 


S2  CASES  IN  THE  SUPREME  COURT. 

The  People  u.  Board  of  Supcrvisore  of  New  York. 

in  their  charter.  When,  therefore,  the  revised  statutes  in  1830 
directed  taxation  to  be  on  the  capital  of  moneyed  corporations, 
it  was  this  certain  fixed  capital  which  was  intended,  so  far  as 
corporations  having  such  capital  were  concerned  ;  and  it  was 
accordingly  held  that  the  taxation  should  be  on  that  capital  alone, 
and  on  the  whole  of  it,  whether  they  had  reserved  funds  exceed- 
ing that  capital,  or  had  sustained  losses  which  would  reduce  it. 
But  more  recently,  mutual  companies  have  arisen  without  a 
fixed  capital,  but  with  funds  reserved  as  sacredly  and  avowedly 
as  the  capital  of  the  old  companies,  as  security  for  those  who 
would  deal  with  them.  These  mutual  companies,  with  an  excu- 
sable anxiety  for- their  own  interest  alone,  strongly  urged  that 
they  had  no  capital,  and  so  were  not  liable  to  any  taxation. 
This  court  decided  that  the  reserved  funds  thus  set  apart  were 
their  capital,  and  that  they  were  to  be  taxed  on  the  amount  of 
those  funds.  In  1849,  (Apl.  10,  ch.  308.)  the  legislature  by  a 
general  law  authorized  the  formation  of  mutual  companies  for 
various  purposes,  including  life  and  health  insurance  ;  but  re- 
quired that  no  joint-stock  company,  authorized  under  that  act, 
should  do  business  in  the  city  of  New  York,  or  county  of  Kings, 
with  a  less  capital  than  $150,000,  and  that  no  marine  or  fire 
insurance  company  should  commence  business  in  the  city  of  New 
York  or  county  of  Kings  until  it  had  premiums  from  at  least 
100  applicants,  amounting  to  $300,000  in  case  of  marine  com- 
panies, and  $200,000  in  case  of  fire  companies ;  and  that  in 
other  parts  of  the  state  the  premiums  to  be  paid  or  secured 
should  amount  to  $100,000,  and  that  no  company  for  life  or 
health  insurance  on  the  mutual  plan  should  commence  busi- 
ness until  a  cash  capital  of  $100,000  should  be  paid  in  and 
invested. 

On  29th  June,  1853,  an  act  was  passed,  (ch.  469,)  to  take 
effect  in  twenty  days  thereafter,  that  any  mutual  life  insurance 
company  incorporated  previous  to  the  act  of  10th  April,  1849, 
■should  be  subject  to  taxation  in  the  same  manner  as  if  it  were 
incorporated  under  said  general  law  with  a  capital  of  $100,000, 
as  required  by  the  sixth  section  of  the  general  law.  To  take 
the  view  of  this  law  most  favorable  to  the  relators,  this  act  waa 


N'EW  YORK— MAY,  1855.  §3 


The  People  v.  Board  of  Supervisors  of  New  York. 

intended  to  make  these  companies  liable  to  taxation  in  the  same 
manner  as  if  they  had  a  fixed  capital  of  .$100,000.  Under  the 
decisions  before  referred  to,  and  the  statutes  up  to  the  last  date, 
such  a  company  would  be  liable  to  taxation  on  tha.t  amount,  al- 
though its  capital  should  in  fact  be  reduced  to  a  much  smaller 
amount,  and  would  not  be  liable  to  taxation  on  any  larger 
amount,  al though  it  should  have  reserved  funds  far  exceeding 
that  amount.  But  on  the  21st  of  July  in  the  same  year,  by  an 
act  passed  on  that  day,  and  which  took  effect  immediately,  the 
legislature  changed  this  rule — so  changed  it  as  to  leave  the  law  as 
it  stood  before,  Avhen  the  capital  of  a  company  was  reduced, 
unless  its  clear  annual  income  was  equal  to  five  per  cent  of  the 
capital,  but  changed  it  when  the  company  had  surplus  profits 
or  reserved  funds  beyond  its  capital ;  and  declared  that  its  cap- 
ital, together  with  those  surplus  profits  or  reserved  funds,  (ex- 
cept ten  per  cent  of  its  capital  and  except  its  real  estate,) 
"  should  be  assessed  and  taxed  in  the  same  manner  as  the  other 
personal  and  real  estate  of  the  company,  unless  such  company 
shall  be  entitled  to  commute,"  and  shall  elect  to  do  so.  (§  10 
of  1  R.  S.  415,  as  amended  by  an  ac^o/"  1853.) 

This  act  was  passed  to  amend  the  general  law  contained  in 
the  revised  statutes  as  to  taxation,  and  applies  in  its  terms  to 
"  every  company  liable  to  taxation,"  (§  10  as  amended,)  or  when 
restricted  by  the  revised  statutes,  to  "  all  moneyed  or  stock  cor- 
porations" deriving  an  income  or  profit  from  their  capital  or 
otherwise.  (1  R.  S.  414,  §  1.)  It  has  been  decided  that  these 
companies  come  within  that  description.  The  effect  of  this  act 
Avas,  that  (while  before  companies  with  a  fixed  capital  could  he 
taxed  only  on  their  capital,  although  they  had  large  surplus 
profits  and  reserved  funds)  after  this  act  was  passed  those  com- 
panies would  l:»e  taxed,  both  on  their  capital  and  on  those  surplus 
profits  or  reserved  funds.  Such  has  been  its  practical  opera- 
tion ;  and  banks  and  other  companies,  which  before  had  held 
their  surplus  profits  exempt  from  taxation,  have  since  been  com- 
pelled to  pay  taxes  on  them.  These  companies  can  claim  no 
special  exemption  in  their  favor  ;  they  are  Avithin  the  words  of 
the  act,  and  within  its  spirit.     The  object  of  the  act  was  to  in- 


84  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Board  of  Supervisors  of  New  York. 

crease  the  taxable  property  in  the  state,  and  to  raise  more  n.onr 
ey  by  taxation  ;  and  it  was  part  of  the  same  policy  which  led  to 
the  passage  of  another  act  on  the  same  21st  July,  1853,  (ch. 
651j)  imposing  an  additional  state  tax  of  |  of  a  mill  for  the  fiscal 
year  commencing  October,  1853,  and  of  ^  of  a  mill  for  the  year 
commencing  October  1,  1854.  The  state  needed  more  revenue, 
and  this  was  discovered  by  the  21st  of  July  of  that  year,  and 
both  these  measures  were  resorted  to  in  order  to  supply  that 
need.  This,  too,  explains  why  the  act  of  21st  July  should  be 
so  drawn  as  to  qualify  an  act  passed  so  short  a  time  before  as 
the  previous  29th  of  June.  The  public  faith  required  the  pay- 
ment of  the  public  debts,  and  those  whose  business  it  was  to 
point  out  the  ways  and  means  of  doing  this,  discovered  the  ne- 
cessity of  resorting  to  these  measures  when  they  were  adopted, 
and  probably  did  not  long  before. 

It  was  urged  that  these  companies  could  not  be  intended  to 
be  included  in  the  act  of  21st  July,  because  that  act  allows 
companies  which  do  not  receive  in  any  year  a  clear  income  of 
five  per  cent  on  their  capital  to  commute,  on  paying  five  per 
cent  on  their  clear  income.  This  act  is  only  an  amendment  of 
1  R.  tS.  414,  (fee,  so  that  it  is  to  be  read  as  part  of  the  revised 
statutes  ;  and  then  it  might  as  well  be  urged  that  the  company 
was  not  liable  to  any  part  of  the  chapter  of  the  revised  statutes 
as  to  taxation,  and  so  that  the  company  was  exempt  from  all 
taxation.  This  ninth  section  gives  the  special  privilege  of  com- 
muting to  those  who  can  bring  themselves  within  its  provisions  ; 
but  to  those  who  cannot,  it  is  as  if  it  were  not  in  the  law.  If 
the  relators'  construction  of  the  act  of  June  29th,  1853,  is  so 
far  correct  that  they  are  to  be  taxed  as  if  they  had  a  capital  of 
$100,000,  then  their  profits  are  to  be  calculated  on  that  sum, 
for  the  purpose  of  ascertaining  whether  they  can  commute  or 
not,  and  then  they  can  come  within  that  section,  if  their  profits 
are  not  too  great.  The  memorial  of  the  relators  to  the  legislature 
in  1853,  submitted  in  this  case,  states  that  "a  single  life  insur- 
ance company  in  this  city  had,  on  the  1st  May,  1853,  a  reserved 
fund  of  $2,500,000,  which  must  accumulate  to  many  millions 
to  meet  at  maturity  the  claims  on  policies  now  in  force."     Is  it 


KEW  YORK— MAY,  1855.  §5 


The  People  V.  Board  of  Supen'isors  of  New  York. 

not  likely  that  this  disclosure  led  to  the  act  of  July  21st,  taxing 
resei-ved  funds  of  all  companies,  and  forcing  the  legislature,  if 
it  would  tax  all'  property  not  devoted  to  charitable  or  religious 
purposes,  not  to  leave  these  newly  discovered  treasures  any 
longer  exempt  ?  And  if — as  the  memorial  supposes — this  fund 
must  increase  to  many  millions  in  the  hands  of  sin-^le  compa*- 
nies,  there  may  be  some  reason  to  apprehend  that  these  compa- 
nies would  divert  from  their  ordinary  channels  such  large  sums 
that  trade  would  be  embarrassed,  and  the  companies  obtain  a 
control  not  very  favorable  to  the  simplicity  which  should  char- 
acterize our  institutions  ?  These  considerations  certainly  would 
not  make  these  companies  such  favorites  with  the  legislatui-e  as 
to  exempt  them  from  taxation,  which  the  widow  and  the  or 
phan,  who  have  any  property,  must  bear. 

The  assessors  assessed  this  company  at  $100,000,  supposing 
that,  under  the  law,  they  could  not  assess  any  more  of  their  prop- 
erty ;  but  they  did  not  make  that  the  estimate  of  the  value  of 
the  property.  The  tax  commissioners  ascertained  this  fact,  and 
that  the  reserved  funds  ofthe  company  exceeded  $1,000,000,  and 
assessed  the  company  at  that  last  sum.  The  company  appealed  to 
them,  and  to  the  supervisors  of  the  county,  to  restore  the  rolls 
to  their  former  condition ;  but  both  bodies  refused,  and  the 
company  now  applies  to  the  court  for  a  mandamus  to  compel  the 
supervisors  to  make  the.  restoration.  The  powers  of  the  tax 
commissioners  were  considered  in  the  case  of  Adriance  vs.  these 
same  defendants,  and  it  was  held  that  the  tax  commissioners 
could  not  raise  the  valuation  of  real  estate  above  the  actual  val- 
uation placed  upon  it  by  the  assessors  ;  because  they  had  power 
only  to  add  to  the  roll,  and  assess,  according  to  law,  any  real  or 
personal  estate  liable  to  taxation  which  had  not  been  assessed 
by  the  assessors,  {Laws  1850,  ch.  121,  §  21,  amended  1851 ;) 
and  that  real  estate  once  valued  by  the  assessors  was  assessed 
by  them,  although  assessed  below  its  real  value.  But  in  thi.s 
case  the  assessors  did  not  deternnine  the  value  of  the  relator's 
personal  estate  at  all ;  but,  acting  under  a  mistake  of  the  law, 
thoy  omitted  to  assess  its  value,  and  placed  in  the  roll,  not  its 
value,  but  a  sum  which  they  supposed  the  law  required  them 


gQ  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Board  of  Supervisors  of  New  York. 

to  put  there  without  any  exercise  of  their  judgment.  Ui.der 
the  act  of  July  21,  1853,  they  were  to  place  in  the  fourth  col- 
umn of  the  assessor's  roll  "  the  amount  of  the  capital  stock  of 
the  company,  and  of  all  its  surplus  profits,  or  reserved  funds, 
aforesaid."  (§  3.)  The  assessors  did  insert  in  the  column 
the  nominal  capital,  but  omittei'  the  surplus  profits,  or  reserved 
funds,  which  the  law  made  liable  to  taxation.  These  profits  or 
funds  were  personal  estate,  liable  to  taxation,  which  had  not 
been  assessed  by  the  assessors,  and  so  were  not  within  the  ju- 
risdiction of  the  tax  commissioners  to  "  assess  according  to  law," 
and  to  "add  to  the  assessment  roll."  {Laws  of  1850,  CA.  121,  §21.) 
The  motion  for  a  mandamus  is  denied,  with  ^10  costs  ;  but 
to  enable  the  relators  to  carry  the  question  further,  they  may 
have  an  alternative  mandamus,  stating  all  the  facts  contained  in 
these  papers  on  which  this  motion  is  founded,  so  that  the  de- 
fendants may  demur  thereto,  and  let  an  order  be  entered  de- 
nying a  peremptory  mandamus  ;  and  proceedings  may  be  stayed 
on  the  execution  until  the  decision  of  the  general  term." 

J.  Blunt,  for  the  appellants. 

Bi/  the  Court,  Roosevelt,  J.  This  is  a  claim  on  the  part 
of  one  of  only  two  particular  mutual  life  insurance  companies, 
for  the  law,  although  seemingly  general,  applies  to  no  others, 
to  be  in  effect  exempt  from  taxation.  With  a  fund  employed  in 
their  business  amounting,  as  appears,  to  nearly  three  millions, 
they  claim  that  by  an  act  of  the  legislature,  passed,  we  may 
presume,  at  their  special  instance,  in  June,  1853,  they  were  to 
be  taxed  as  if  their  capital  was  limited  to  the  comparatively 
insignificant  sum  of  $^100,000. 

By  the  act  referred  to  it  was  provided  that  any  mutual  life 
insurance  company,  incorporated  before  the  adoption  of  the  gen- 
eral insurance  law  of  1849,  should  be  subject  t6  taxation  in  the 
same  manner  as  if  it  were  incorporated  under  the  general  law 
with  a  capital  of  ^100,000.  Construing  this  act  in  connection 
with  the  previous  legislation  of  the  state,  and  harmonizing  as 
far  as  practicable  with  the  principles  of  equal  justice,  the  courts, 


I 


NEW  YORK-  MAY,  1855.  §7 


The  People  v.  Board  of  Supervisors  of  New  York. 

and  as  I  conceive  very  properly,  held  that  the  specially  chartered 
companies  created  under  the  old  monopoly  system,  were  to  be 
placed  upon  the  same  footing — and  no  better — as  those  organ- 
ized under  the  genei*al  law  :  which,  instead  of  limiting  the  taxa- 
tion of  the  new  associations  to  $100,000,  merely  limited  their 
power  to  commence  business  until  they  had  on  hand  a  fund  of 
at  least  $100,000. 

The  $100,000  provision,  it  was  held,  had  the  same  meaning 
both  in  the  act  of  1853,  and  in  the  general  act  of  1849,  to  which 
that  of  1853  referred — and  in  the  act  of  1849  its  object  confess 
edly  and  indisputably  was  to  fix  a  minimum  instead  of  a  maximum 
— a  minimum  of  capital  and  not  a  maximum  of  taxation. 

The  act  of  June,  1853,  was  no  doubt  adroitly  framed  iii  the 
interest  of  the  two  companies  in  question.  Its  language,  with 
out  being  direct  and  striking,  was,  upon  close  consideration,  sus- 
ceptible of,  if  it  did  not  grammatically  require,  the  interpretation 
subsequently  sought  to  be  put  upon  it.  Having  failed,  however, 
as  we  have  seen  in  the  courts,  to  establish  that  interpretation, 
another  attempt,  it  would  seem,  by  or  on  behalf  of  the  compa- 
nies, was  made  upon  the  legislative  department  in  the  form 
of  a  quasi  appeal  from  the  judiciary  ;  and  in  March,  1855,  an  act 
was  accordingly  passed  by  the  legislature  of  that  year  to  declare 
the  true  intent  and  meaning  of  their  predecessors  in  the  act  of 
June.  1853  ;  in  other  Avords,  an  act  of  the  legislature  to  reverse 
the  act  of  the  court.  The  relators,  however,  are  now  met  by  a 
new  difficulty.  Before  the  act  of  June,  1853,  went  into  opera- 
tion, the  legislature,  it  appears,  overlooking,  we  may  presume, 
Avhat  they  had  less  than  twenty  days  previously  done — not  an 
uncommon  occurrence  in  the  closing  scenes  of  a  legislative  ses- 
sion— passed  a  new  tax  law  applicable  to  all  incorporated  com- 
panies, chartered  or  general,  liable  to  taxation,  "  on  their  capital 
or  otherwise."  By  this  act  not  only  the  capital  stock  proper  of 
all  such  companies,  but  their  "surplus  profits  or  reserved  fund?! 
exceeding  10  per  cent,"  were  expressly  directed  to  be  assessed 
and  taxed  in  the  same  manner  as  the  other  personal,  or  res.!  es- 
tate of  the  county.  Here,  then,  be  the  construe cioi'.  of  th^  m-'**; 
of  June  what  it  may,  was  a  palpable  repeal  in  July  of  h^  only 


gg  CASES  IN  THE  SUPREME  COURT. 


Tho  People  v.  Board  of  Supervisors  of  New  York. 

provision,  and  a  substitution  of  a  more  comprehensive  enactment 
in  its  place — a  circumstance  wholly  overlooked,  it  would  seem, 
by  the  authors  of  the  declaratory  act  of  1855.  That  act,  declar- 
ing, as  it  did,  "  the  true  intent  and  meaning"  of  the  act  of  June^ 
1853,  and  of  that  act  only,  merely  directing  what  construction 
should  be  given  by  the  courts  to  an  act  which,  in  effect,  had  long, 
since  been  repealed,  and  left  the  general  law  of  July,  1853,  un- 
touched, to  be  applied  to  "  every  company"  alike,  whether  organ- 
ized under  the  old  system  of  special  charters,  or  the  new  system 
of  free  trade.  And  why  should  any  distinction  be  made  between 
them  ?  Especially,  why  should  the  two  particular  companies  in 
question  be  taxed  only  on  ^100,000  each,  while  every  other 
company  in  the  same  city,  and  standing  on  the  same  footing,  is 
assessed  on  its  "  reserved  funds  ?"  The  constitutionality  of  such 
legislation — even  if  expressly  intended  and  clearly  expressed — 
might  well  be  doubted.  But  the  court  will  not  presume  that 
the  legislature  intended  to  violate  either  the'  spirit  or  letter  of 
the  constitution,  and  will  not,  therefore,  give  to  their  acts  a  con- 
struction which  would  imply  such  intention.  Equality  of  taxa- 
tion is  a  fundamental  principle  of  our  government,  which  no 
legislature,  in  the  absence  of  the  most  explicit  provisions,  will 
be  presumed  to  have  intended  to  violate.  The  assessors,  it 
seems,  in  the  case  of  the  present  companj'',  misled  by  the  peculiar 
wording  of  the  act  of  June,  1858,  taxed  them  only  on  $100,000. 
But  the  tax  commissioners,  on  reviewing  the  assessment  roll, 
added  $900,000,  making  the  amount  one  million  instead  of  one 
hundred  thousand ;  and  the  board  of  supervisors  subsequently, 
on  the  application  of  the  company,  refused  to  restore  the  original 
assessment,  and  confirmed  the  judgment  of  the  commissioners  ; 
upon  which  the  company  sued  out  a  mandamus  to  compel  the 
supervisors  to  reverse  their  action  in  the  matter  ;  and  the  case 
now  comes  up  on  a  demurrer  to  the  answer  of  the  supervisors  ; 
or  rather,  on  an  appeal  to  the  general  term  of  the  court  from 
the  decision  of  the  judge  at  special  term,  sustaining  the  super- 
visotQ. 

What..  tLex),  we  are  to  inquire,  are  the  powers  of  the  tax  com- 
;iiic5fc)oiieiJ?  .-     Can  they,  in  such  cases,  correct  the  errors  of  the 


NEW  YORK— MxVY,  1855.  09 

The  People  v.  Board  of  Supervisors  of  New  York. 

ward  assessors:  '^  They  have  power,  it  is  said,  to  add  to  the  as- 
sessment roll  ana  assess  any  real  or  personal  estate,  liable  to 
taxation,  which  may  not  have  been  assessed,  but  they  cannot  in- 
crease the  valuation  as  made  by  the  assessors.  As  to  real  estate, 
which  is  always  specific,  the  rule  may  be  so.  Where  the  local 
officers,  after  inspecting  a  particular  house  and  lot,  put  upon  it  a 
certain  value,  there  may  be  some  reason,  though  none  of  a  very 
striking  character,  for  not  permitting  the  commissioners  to  raise 
such  value.  But  what  reason  is  there  for  such  a  restriction  in 
the  case  of  personalty  ?  The  assessors,  in  estimating  the  tax- 
payers' personal  property,  do  not  value  any  particular  stock 
of  goods,  or  household  furniture,  or  bonds  and  mortgages,  but 
personal  estate  generally.  When,  therefore,  in  such  cases,  they 
put  the  amount  too  low.  it  is  invariably,  almost,  an  error  not  of 
undervaluation  but  of  omission.  And  it  is  conceded  the  power 
of  the  tax  commissioners,  however  limited  in  other  respects,  ex- 
tends at  all  events  to  supplying  the  omissions  of  the  ward  offi- 
cers, whether  the  property  omitted  be  personal  or  real.  Now 
the  supervisors  in  their  answer  allege — and  the  allegation  is  ad- 
mitted by  the  demurrer — that  in  the  assessment  of  the  personal 
property  of  this  company,  there  was  an  omission,  among  other 
items,  of  $2,343,681  in  bonds  and  mortgages,  which  were  "  part 
of  tlie  capital,  surplus  profits,  or  reserved  fund  of  the  company," 
and  which  the  assessors  did  not  set  down  or  estimate,  in  conse- 
quence of  the  erroneous  impression  they  labored  under,  not  as 
to  the  value  of  these  securities,  but  as  to  the  law  of  the  state, 
applicable  to  them.  They  mistook  the  law,  and  under  that  mis- 
take, inserted  only  the  nominal  capital  of  $100,000.  In  other 
words,  they  omitted  the  "  surplus  reserved  fund  :"  they  omitted 
it  altogether.  Was  it  not  then  both  the  right  and  the  duty  of 
the"  commissioners  to  supply  the  omission  ?  The  only  error  of 
the  commissioners,  as  it  seems  tome,  an  error,  hoAvever,  of  which 
the  relators  have  no  reason  to  complain,  was^  not  in  adding,  but 
in  adding  too  little,  in  adding  less  than  one  million,  instead  of 
more  than  two. 

It  has  been  said  that  if  the  commissioners  are  alloAved  to  pos- 
sess this  power  of  raising  the  amounts  set  down  by  the  assess- 

VoL.  XX.  12 


90  CASES  IN  THE  SUPREME  COURT. 

Tlie  People  v.  Board  of  Supervisors  of  New  York. 

ors,  great  injustice  may  at  times  be  done  to  particular  individ- 
uals, as  no  provision  is  made  by  law  for  giving  notice  of  the 
contemplated  augmentation.  And  does  not  this  objection  apply 
with  equal  force  to  the  addition  of  an  omitted  house,  as  to  the 
addition  of  an  omitted  mortgage  ?  Suppose  a  case  in  which  the 
assessors  should  have  omitted  wholly  the  personal  estate  of  a 
particular  individual ;  may  not  the  commissioners  insert  it  ? 
Even  the  counsel  of  the  company  at  first  conceded  that  in  sucli 
a  case  the  commissioners  might  insert  the  personalty  so  omitted. 
And  yet  the  argument,  from  want  of  a  notice,  is  the  same  in 
botli  instances.  All  that  can  be  said  properly  on  this  point  is 
that  the  statute  is  defective,  and  that  the  defect,  although  rem- 
edied in  actual  practice  by  the  commissioners,  should  be  cor 
rected  as  matter  of  right,  by  the  legislature. 

The  relators,  it  appears,  had  notice.  They  argued  before  the 
commissioners,  and  they  appealed  to  the  supervisors.  They  were 
heffrd  by  both,  and  were  not  considered  as  wronged  by  either. 
And  such,  too,  after  full  hearing,  was  the  opinion  of  the  special 
term. 

There  is  clearly  no  equity  in  the  relators'  case.  They  seek 
to  establish  for  themselves  a  special  privilege,  at  the  expense  of 
the  rest  of  the  community,  and  incompatible  with  the  equal 
rights  of  all  other  companies,  but  one,  engaged  in  the  same  busi- 
ness. Such  claims,  to  be  available,  must  be  clearly  made  out ; 
and  statutes  passed  to  sustain  them  (if  so  passed  at  all)  being 
at  variance  with  common  right,  are  to  be  strictly  construed.  So 
construing  the  statutes  cited  by  the  relators,  the  position  taken 
by  them  is  as  untenable  in  law  as  in  equity. 

Judgment  of  special  term  affirmed,  with  costs. 

[New  York  General  Term,  May  7, 1855.  Roosevelt,  Gierke  and  Cowles, 
Jostioes.] 


NEW  YORK— MAY,  1855.  91 


White  vs.  Bullock. 

It  is  a  matter  within  the  jurisdiction  of  the  surrogate  on  the  final  settlement  of 
an  estate,  to  find  what  each  executor  is  debited  and  credited  for;  also 
what  they  have  received  and  paid  out  jointly  ;  in  order  that  he  may  deter- 
mine what  each  is  liable  for. 

Where  there  are  two  executors  of  an  estate,,  one  active  and  the  other  inactive, 
the  latter  will  not  be  held  accountable  for  the  acts  of  the  former,  if  he  has 
reason  to  believe  that  his  co-executor  is  acting  prudently,  and  according  to  law. 
The  surrogate  is  therefore  bound  to  inquire  whether  one  or  both  are  ac- 
countable. 

And  the  decree  made  by  him,  upon  such  accounting  is  conclusive,  bet/.een  the 
executors,  as  to  the  amounts  received  and  paid  out  by  each,  and  carjiot  be 
contradicted  by  the  sworn  accounts  of  the  executors,  produced  by  them  upon 
the  accounting. 

Commissions  are  to  be  divided  between  executors  according  to  the  services  ren- 
dered by  them  respectively  ;  and  in  the  absence  of  any  other  proof  in  respect 
to  such  services,  the  share  of  each  is  to  be  determined  by  the  amount  of  mon- 
eys stated  in  the  surrogate's  decree  to  have  been  received  and  paid  out  by  the 
executors,  respectively.  • 

Justice  requires  that  when  an  executor  has  done  nothing,  and  has  borne  no  re- 
sponsibility, he  shall  not  share  in  the  commissions. 

The  act  of  18-19,  {Laics  of  1849,  ch.  160,)  is  in  accordance  with  this  principle. 

It  requires  the  surrogate  to  apportion  the  commissions  among  the  executors  ac- 
cording to  the  services  rendered  by  them,  respectively. 

APPEAL,  by  the  plaintiff,  from  a  judgment  entered  at  a  spe- 
cial terra.  The  plaintiff  and  the  defendant  were  the  exec- 
utors of  John  M.  Mounsey,  deceased.  The  plaintiff  sued  for 
one  lialf  of  the  commissions  allowed  by  the  surrogate  on  the 
final  settlement  of  the  accounts  of  the  executors  ;  he  contendinfT 
that  he  was  entitled  to  one  equal  half  of  the  commissions,  and 
the  defendant  insisting  that  he  had  incurred  no  responsibility 
and  rendered  no  services,  except  in  a  joint  liability  for  $121, 
and  so  was  entitled  to  commissions  only  on  that  sum.  The 
plaintiff  produced  the  decree  of  the  surrogate,  on  the  final  ac- 
counting of  the  executors.  That  expressly  declared  that  the 
executors  were  debited  with  $121,  the  inventoried  eJJWts  of  the 
personal  estate,  and  that  they  were  allowed  $121  by  payments 
towarrls  funeral  expenses.  This  sum  was  charged  and  credit- 
ed to  both  executors.     It  also  declared  that  the  residue  of  the 


92  CASES  IN  THE  SUPREME  COURT. 

White  V.  Bullock. 

moneys  received,  amountint;  to  $10,233.69,  except  the  aliove 
$121,  were  received  by,  and  debited  to,  Robert  Bullock  alone 
and  not  jointly  by  him  and  Charles  L.  White,  his  co-executor. 
The  items  of  that  residue  showed  that  the  moneys  were  received 
by  the  defendant  alone,  for  rents,  and  the  proceeds  of  the  sales 
of  real  cstotc  since  March  1,  1841,  the  date  of  the  death  of  the 
testator^  and  from  the  estate  of  J.  M.  Todd,  of  whom  Bullock 
was  a  surviving  partner.  The  decree  also  declared  that  the 
payments  made,  except  the  $121,  and  which  with  the  deduction 
of  that  sum,  amounted  to  $4656.67  "  were  paid  by  and  are 
credited  to  Robert  Bullock  alone,  and  not  jointly  by  him  and 
Charles  L.  White  his  co-executor  ;"  and  then  striking  a  balance 
it  declared  the  total  cash  in  hand  to  be  $5807.78  which  it  de- 
clared to  be  in  the  hands  of  Robert  Bullock.  It  afterwards, 
n-citing  that  the  amount  in  the  hands  of  Robert  Bullock,  one  of 
paid  executors,  was  $5807.78,  ordered  that  he  pay,  out  of  this 
sum,  various  suras,  covering,  with  the  commissions,  the  whole 
$5807.78  in  the  hands  of  this  defendant.  The  directions  as  to 
commissions  were  that  he  retain  the  commissions  of  said  exec- 
utors, being  the  sum  of  $202,38. 

The  plaintiff  then  oifered  in  evidence  a  certified  copy  of  the 
accounts,  showing  receipts  and  disbursements  by  White  and 
Bullock  as  executors  of  Mounsey,  and  on  which  the  surrogate's 
decree  was  founded,  in  order  to  show  thereby  what  each  exec- 
utor received  and  what  each  paid  out  on  account  of  the  estate, 
and  thus  to  show  what  commissions  the  plaintiff  was  entitled 
to.  The  judge  rejected  the  evidence,  and  the  defendant  except- 
ed. These  accounts  were  sworn  to  by  both  executors ;  each 
swearing  that  they  were  just  and  true  and  contained  a  true 
account  of  all  moneys  received  by  him  as  executor.  The  ac- 
counts contained  a  number  of  schedules,  and  several  of  them 
were  headed  "  schedules  of  moneys  from,  &c.  by  Robert  Bullock 
and  Charles  L.  White  executors."  These  accounts  were  a  part 
oniy  of  the  evidence  before  the  surrogate ;  for  notwithstanding 
thiir  production  before  him,  he  found  precisely  what  each  exec- 
utor  A'ceived,  and  what  each  paid  out,  and  what  each  waei 


NEW  YORK— MAY,  1835. 


White  r.  Bullock. 


i 


Jcbited  and  credited  for  ;  and  what  the  two  toge'Lb.^i    re. ■-•<•-- 7 :.•  I 
an<l  paid  out  and  were  debited  and  credited  for. 

The  cause  was  tried  at  the  New  York  circuit  in  June.  IST'J, 
before  Justice  Mitchell  and  a  jury,  and  a  verdict  was  ren- 
dered in  favor  of  the  plaintiff  for  ^3.03  damages ;  and  in  favor 
of  the  defendant,  for  the  costs. 

A.  Thompson,  for  the  appellant.  I.  The  exclusion  of  the 
executors'  sworn  account  by  the  judge  as  testimony  was  erro- 
neous. It  was  competent  evidence,  and  should  have  been  ad- 
mitted. 

The  surrogate's  decree  was  not  conclusive  as  between  the 
executors.  A  surrogate's  decree  is  only  conclusive,  on  the  final 
accounting,  of  the  following  facts,  and  no  others.  (2  R.  iS.  93, 
§  65.  Pi^es.  Bank  of  Poiighkeepsie  v.  Hasbrouck,  2  Sclii.  210; 
221.)  (1.)  That  the  charges  in  the  accounts  for  payment  tj 
creditors,  legatees,  next  of  kin  and  for  necessary  expenses  arc 
correct.  (2.)  That  the  executor  or  administrator  has  been 
charged  with  all  thef  interest  with  which  he  is  chargeable  upon 
such  moneys  received  by  him  as  are  embraced  in  his  account. 
(3.)  That  the  moneys  stated  in  the  account  as  collected  were 
all  the  moneys  collectable  at  the  time  of  the  settlement,  on  the 
debts  stated  in  the  account.  (4.)  That  the  allowance  for  de- 
crease, and  the  charge  for  increase,  in  the  value  of  any  assets, 
made  in  the  account  were  correctly  made.  (2  /?.  S.  93,  §'■*., 
statute  1817.  Pres.  Bank  of  Pov.ghkecpsie  v.  Ilusbrc^r.:.'' 
2  Seld.  216,  221.)  (5.)  The  plaintiff,  as  executor,  had  no  :cigll 
to  appeal  from  the  surrogate's  decree  for  not  stating  bo'V  trivi 
commissions  due  the  executors  should  be  divided  between  t.lir.m. 
(6.)  It  is  clear,  then,  that  in  this  action,  if  the  decree  waji  no; 
conclusive,  the  evidence  offered  by  the  plaintiff  was  impropo>:'i.y 
excluded  on  the  trial. 

II.  The  judge  erroneously  refused  to  charge  that  the  plamti** 
was  entitled  to  one  half  of  the  commissions,  ^202.38,  named  id 
the   surrogate's   decree,   with   interest   from  Msy   5th,    1847 
(1.)  The  commissions  are  called  or  denomin^ited  in   the  dcciet- 
the  commissicns  of  the  s.vecutors,  which  the  defendant  ib  pei- 


0  {  OASES  IN  THE  SUPREME  COURT. 


White  V.  Bullock. 


r^-'.'-'i'i  oj  ■  Vvc  decree  to  retain.  (2.)  The  presumption  cannot 
arise  that  the  comuiissions  belonged  to  one  of  the  executors. 
^•''\*:/i  thoj  are  called  the  commissions  of  the  executors — simply 
because  in  paying  the  money  in  his  hands  he  is  permitted  to 
retain  them.  (3.)  The  burden  of  proof  on  the  face  of  the  de- 
cree lay  upon  the  defendant,  to  show  that  he  was  entitled  to  the 
whole  of  the  commissions.  (4.)  According  to  the  law,  the  com- 
missions belonged  to  the  executors  jointly  and  in  equal  propor- 
tions, and  even  the  surrogate  had  no  right  to  divide  them.  The 
surrogate  noia  has  the  right.  (2  R.  iS.  93,  §  58,  amended  by 
Laws  N.  Y.  1849,  ch.  160,  §  1,  p.  218,  219.)  (5.)  If  the  sur- 
rogate could  have  made  a  difference  between  the  executors,  he 
(lid  not  do  it,  and  in  such  case  the  presumption  of  law  would  be 
tliat  the  commissions  should  be  equally  divided.  (6.)  The  sur- 
rogate's court  is  a  statutory  jurisdiction,  and  has  no  common  law 
or  other  powers,  except  those  conferred  by  statute.  {Dakin  v. 
Hudson,  6  Cowen,  221.  Bloo??i  v.  Biirdick,  1  Hill,  130.  Cor- 
win  V.  Merritt,  3  Barb.  341.  People  v.  Barnes^  12  Wend.  482. 
Dakin  v.  Hemming,  6  Paige,  95.)  ** 

III.  The  judge's  charge  was  erroneous  in  holding  that  the 
surrogate's  decree  not  having  passed  on  the  amount  of  the 
commissions  to  both  executors,  the  amount  must  be  divided 
between  thera  in  proportion  to  the  services  rendered  by  each 
executor.  (1.)  This  charge  is  clearly  inconsistent  with  the  de- 
'iiion  that  the  sworn  account  of  the  executors  could  not  be 
<;>. "n  in  evidence,  to  show  what  services  each  executor  rendered 
i'l  fr  3  administration  of  the  estate.  (2.)  It  is  clear  the  judge 
h^^l  ■■he  surrogate's  decree  conclusive,  both  as  to  the  amount  of 
vho  '.icmmissions  and  as  to  the  services  rendered  by  them 
:  ;>r.p--,ctively.  This  is  erroneous.  (2  Selden,  216,  221.)  (3.) 
'•>.  ra  ai50  perfectly  evident  that  the  decree  did  not  intend  to 
sfttlie  the  rights  between  the  executors.  (4.)  The  decree  can- 
L  <y>:  legitimately  have  any  such  effect  given  to  it. 

1"V.  The  judge's  charge  was  incorrect,  in  stating  to  the  jury 
|-.hat  the  plaintiff,  as  co-executor,  was  not  equally  responsible 
Mth  the  defendant  for  all  sums  of  money  received  by  the  de- 
ibndant.  for  the  estate.     (2  Wnis.  on  Ex'rs,  1119,  1120.'» 


NEW  YORK— MAY,  1855. 


White  V.  Bullock. 


V.  The  judge  should,  as  requested,  have  charged  the  jury 
that  an  executor  was  always  accouutable  for  money  received  by 
his  co-executor,  if  he  aids  or  assents  to  it  being  received  by  the 
co-executor,  or  if  it  be  in  his  jjower  to  prevent  him  from  receiv- 
ing it. 

J.  N.  Piatt,  for  the  defendant.  I,  The  great  point  in  the 
case  is.  whetlicr  White,  who  did  nothing  over  and  above  bein^ 
engaged  with  Bullock  in  receiving  and  paying  121  dollars,  is 
to  receive  one  half  of  the  commissions  on  what  Bullock  received 
and  paid  over,  without  having  expended  any  labor  thereon,  or 
incurred  any  liability  therefor,  or  received  or  paid  over  r.ny 
part  of  it.  The  judge  decided  this  point  correctly  when  h*^ 
charged  "  that  amount  must  be  divided  between  them  in  pro- 
portion to  the  services  rendered  by  each  executor."  Tb^s 
charge  v.as  too  much  in  favor  of  the  plaintiff,  because  the  sur- 
rogate, by  his  decree,  had  decreed  that  Mr.  Bullock  should  re- 
tain these  commissions.  But  laying  this  decree  out  of  vicA/, 
the  judge  was  right  in  his  law,  and  he  is  supported  by  the  fol- 
lowing cases :  The  statute  (2  R.  S.  p.  93,  §  58)  provides  for 
the  executor's  commissions — not  for  services  or  responsibilities, 
but  for  moneys  received  and  paid  over,  whatever  may  be  the 
equities  or  justice  of  the  case,  or  the  labors  of  the  executors  ; 
he  or  they  receive  nothing  but  for  moneys  passing  through 
their  hands.  Let  us  examine  the  law  on  this  subject.  The 
revised  statutes  do  not  create  the  right  to  commissions,  they 
merely  put  the  law  in  a  legislative  form.  Laics  of  1817. 
p.  292,  directed  the  chancellor  to  fix  •  the  rate.  3  John.  Ck. 
!>.  630,  fixes  the  rate.  2  R.  S.  p.  9.  §  58  adopts  it.  ( Grant  v. 
Pride,  1  Dev.  Eg.  269.  2  Barb.  Ch.  Rep.  438.  Dayton's 
Surrogate,  p.  227.) 

II.  With  the  exception  of  the  121  dollars,  all  the  busineRa 
was  done  by,  and  all  the  moneys  were  received  and  paid  over  by 
the  defendant.  The  decree  says  all  the  assets  are  chargeable  to  R. 
Bullock,  and  are  $10,233.59.  All  payments  were  made  by  him, 
and  are  .^4,777.67,  leaving  him  chargeable  with  $5,807.78,  out 


{,<j  CASES  I^'  THE  SUPREME  COURT. 

White  V.  Bullock. 

cf  which  he  is  directed  to  retain   the  executor's  commissions 
and  pay  various  creditors,  including  himself. 

III.  The  judge  was  correct  in  ruling  out  the  petition.  The 
decree,  Avhich  was  final,  adjudicated  the  rights  of  the  parties, 
and  the  object  of  introducing  the  petition  is  to  contradict  the 
decree,  and  therefore  clearly  inadmissible.  But  on  examination 
toe  petition  does  not  contradict  the  decree,  and  is  entirely  con- 
a  <tent  with  it.  It  is  a  joint  accounting,  but  neither  meant  to 
'■large  the  other  with  more  than  he  or  she  had  received. 

IV.  The  judge's  charge  is  correct,  and  is  too  broadly  in  favor 
of  plaintiff,  as  the  plaintiff  was  only  entitled  to  commissions  on 
Tt'i  neys  which  had  passed  throilgh  his  hands ;  he  was  entitled  tc 
tjvy thing  for  personal  or  other  services. 

V.  The  exception  at  folio  150,  to  that  part  of  the  charge  in 
which  the  judge  stated  that  the  plaintiff  was  not  equally  re- 
sponsible with  the  defendant,  for  all  sums  of  money  received  by 
the  latter  for  the  estate,  merely  from  his  being  a  co-executor, 
is  bad,  as  by  the  case  of  Bogert  v.  Hertell,  (4  Hill,  492,)  and 
is  irrelevant  to  the  issue. 

VI.  The  exception  at  folio  151,  to  the  refusal  to  charge  that 
an  executor  is  always  accountable  for  moneys  received  by  his 
co-executor,  if  he  aids  or  assents  to  its  being  received  by  him, 
or  it  is  in  his  power  to  prevent  his  co-executor  receiving  it,  was 
manifestly  too  broad,  and  it  is  immaterial  to  the  case  and  facts. 

By  the  Court,  Mitchell  P.  J.  The  finding  as  to  the  re- 
ceipts and  payments  of  the  executors  was  a  matter  within  the 
juiisuiction  of  the  surrogate  on  the  final  settlement  of  the  ac- 
counts ;  for  he  was  to  determine  how  much  each  executor  was 
liable  for.  If  one  executor  had  received  all  the  moneys  and 
made  all  the  payments,  and  the  other  had  every  reason  to  be- 
lieve that  the  active  executor  was  doing  all  this  prudently  and 
according  to  law,  the  inactive  one  would  not  be  accountable  for 
the  moneys  thus  received  by  his  co-executor.  The  surrogate 
was  therefore  bound  to  ascertain  how  these  facts  w^ere,  before 
lie  could   decide  whether  his  decree  should  be  that  Bulloc): 


NEW  YORK— MAY,    1855.  97 


White  V.  Bullock. 


alone  should  be  accountable  for  the  balance  which  was  found  in 
his  hands,  and  should  pay  the  same,  or  that  he  and  White  were 
both  accountable  for  it,  and  should  pay  it.  He  did  pass  on  me 
question,  and  declared  that  White  was  accountable  with  his  co- 
executor  for  the  $121  alone,  and  that  no  debt  was  discharged 
by  the  payment  of  funeral  expenses,  and  that  the  rest  of  the 
moneys  were  "  received  hy  and  debited  to  R.  Bullock  alone,  and 
not  jointly  by'hiin  and  C.  L.  White,  his  co-executor."  The  ne- 
gation "  not  jointly  by  him  and  C  L.  White  his  co-executor," 
was  added  to  prevent  any  doubt  as  to  the  extent  of  the  acts  of 
each,  and  of  the  liability  of  each.  The  decree  in  conformity 
with  this  makes  Bullock  alone  liable  for  the  money  thus  re- 
ceived. The  plaintiff  receives  the  benefit  of  this  decree — is 
exonerated  from  liability  to  the  creditors  for  any  part  of  tlie 
moneys  thus  charged  to  Bullock,  and  which  may  still  be  a  valu- 
able immunity  to  him  (if,  as  intimated^  Bullock  has  failed  to 
pay  all  the  creditors)  and  acquiesced  in  the  decree,  and  founds 
this  very  claim  upon  it,  and  still  seeks  to  disprove  the  most 
important  parts  of  it.  This  is  as  unjust  as  it  is  contrary  to 
legal  principle.  If  the  decree  is  not  conclusive  between  these 
parties  as  to  the  amounts  received  and  paid  by  each ;  then  the 
defendant  may  turn  around  and  sue  the  plaintiff  for  half  of 
the  $5807.78  with  which  he  is  charged,  and  produce  these  veri- 
fied accounts,  according  to  his  views,  as  an  admission  by  White 
that  he  had  received  half  of  the  money.  But  the  accounts,  if 
admissible  as  evidence,  would  not  establish  the  facts  for  which 
they  were  oJ0fered.  The  two  executors  were  together  to  render 
accounts  of  all  moneys  received  by  both  or  either  of  them.  In 
making  out  the  accounts,  no  question  being  thoi  raised  as  to 
the  extent  of  the  separate  or  joint  liability  of  each  executor, 
the  accountant  might  well  entitle  them  schedules  of  moneys 
received  by  Robcrt^  Bullock  and  C.  L.  White,  executors  ;  for 
then  the  main  thing  was  to  show  what  moneys  were  received 
for  the  estate  and  paid  but  for  the  estate,  and  not  how  far  each 
executor  was  liable,  and  he  would  regard  the  executors  and  the 
estate  as  synonymous.  Each  executor  would  also  swear  that 
the  schedules  contained  a  true  account  of  all  moneys  paid  and 
Vol.  XX.  13 


Q^  CASES  IN  THE  SUPREME  COURT. 

Wliile  V.  Bullock. 

received  by  him.  and  so  far  only  did  he  verify  it.  If  they  con 
tinned  all  that  he  received  and  all  that  he  paid  out,  although 
they  contained  much  that  he  never  received  but  M'hich  his  co- 
executor  received,  and  much  that  he  never  paid  out,  but  which 
his  co-executor  paid  out,  his  affidavit  Avas  true  that  they  were  a 
true  account  of  all  moneys  paid  and  received  by  him.  He  did 
not  swear  that  the  accounts  were  true  as  to  the  persons  by  whom 
they  were  received.  The  schedules  contain  the  items  of  the 
moneys  received  and  paid  out  by  Bullock  as  surviving  partner 
of  Mounsey  &r  Co.,  and  entitle  those  as  "  rec'd  by  R.  Bullock, 
surviving  partner,"  and  do  not  there  mention  White.  The  rea- 
son of  this  is  that  the  executors  would  be  accountable  for  the 
net  balance  only  to  which  Mounsey's  estate  was  entitled  as  his 
share  in  the  partnership  property,  after  paying  all  debts,  and 
therefore  in  the  accounts  containing  the  items  from  which  that 
net  balance  was  derived  it  was  stated  as  received  by  R.  Bullock 
as  surviving  partner,  and  not  by  him  and  White  ;is  executors. 

The  plaintiff's  counsel  then  requested  the  judge  to  charge 
the  jury  that  the  plaintiff  was  entitled  to  one  half  of  the  com- 
missions ;  and  that  the  parties  could  not  go  back  of  the 
surrogate's  decree,  to  ascertain  the  services  rendered  by  each. 
The  judge  refused.  If  the  latter  part  of  this  proposition  was 
correct,  then  the  plaintiff  had  no  right  to  prove  the  accounts 
verified  by  the  executors,  for  in  that  he  would  go  back  of  the  de- 
cree. Next  he  requested  the  judge  to  charge  that  if  any  dif- 
ference should  have  been  made  in  the  commissions  to  be  re- 
ceived by  the  executors,  such  difference  could  have  been  made 
in  the  decree  only.  The  judge  charged,  (1st)  that  the  corn 
missions  were  to  be  divided  between  the  executors  according;  to 
the  services  rendered  by  them ;  and  that  without  other  proof 
of  those  services  it  was  to  be  determined  by  the  amount  stated 
in  the  decree  to  have  been  received  and  paid  by  them  respect- 
;ively  ;  (2d.)  That  if  it  had  been  proved  that  the  plaintiff  had 
rendered  services  in  aid  of  the  receipt  and  payment  of  tho 
^5807.78  received  by  Bullock.*  or  had  become  jointly  liable 
with  him  for  that  amount,  or  for  part  of  it,  he-  would  have  been 
entitled  to  a  fair  compensation  for  that  service;  (3d.)   That  the 


NEW  YORK— MAY,  ISob.  99 


White  V.  Bullock. 


plaintiff  "was  not  responsible  ^vith  the  defendant  for  all  moneys 
received  by  the  defendant  for  the  estate,  merely  from  being  a 
co-executor ;  and  (4th.)  That  there  was  no  proof  that  he  had 
done  any  act  to  make  himself  responsible,  except  as  to  the  ^121, 
and  that  the  surrogate  did  not  hold  him  responsible  except  as 
to  that  sum.  The  judge  refused  to  cbarge,  (5th.)  That  an  ex- 
ecutor is  always  accountable  for  money  received  by  his  co- 
executor  if  he  aids  or  assents  to  its  being  received  by  his 
co-executor,  or  it  is  in  his  power  to  prevent  the  executor  receiv- 
ing it ;  declaring  the  proposition  too  broad. 

The  last  proposition  is  evidently  too  broad;  for  it  would 
make  an  executor  liable,  in  case  he  had  it  in  his  power  to  pre- 
vent the  executor  receiving  money,  if  he  did  not  prevent  it. 
although  he  should  have  no  reason  to  believe  that  the  executor 
was  not  acting  in  good  faith  in  receivinfj  it,  and  would  not  faith- 
fully  keep  it  for  the  estate.  Besides,  there  were  no  facts  to 
raise  the  question.  The  objection  to  the  3d  branch  of  the 
judge's  charge  was  also  too  broad,  and  like  the  last.  The  2d 
branch  was  favorable  to  the  defendant,  if  there  had  been  any 
facts  to  sustain  it.  The  4th  branch  was  a  statement  as  to  the 
proofs,  and  was  true. 

The  authority  quoted  by  the  plaintiff  (if  any  were  needed) 
shows  that  if  an  executor  is  merely  passive  he  is  not  responsible 
for  the  acts  of  his  co-executor,  and  that  he  cannot  be  made 
chargeable  for  a  devastavit  of  his  co-executor,  unless  he  in  some 
way  contribute  to  it.  (2  Wms.  on  Executors.  1530.)  Justice 
Avould  require  that  when  he  has  done  nothing,  and  has  borne  no 
responsibility,  he  should  not  share  in  the  commissions.  The 
act  of  1849,  ch.  160,  is  in  accordance  with  this  principle.  It 
requires  the  surrogate  to  apportion  the  commissions  among  the 
executors  according  to  the  services  rendered  by  them  respect- 
ively. It  did  not  introduce  a  new  principle,  but  gave  to  the 
surrogate  an  express  power  and  obligation  to  apportion  the  com- 
missions, because  before  that,  no  such  express  power  was  pos- 
sessed by  that  officer,  and  possibly  no  such  implied  power.  In 
Valentine  v.  Vahntiue,  (2  Bnrh.  Ch.  438.)  the  chancellor  said 
'  the  whole  commissions  should  be  apportioned  among  all  the 


100  OASES  IN  THE  SUPREME  COURT. 

Hogan  V.  De  Peyster. 

executors,  either  equally  or  upon  some  equitable  principle  in 
reference  to  their  respective  services  in  the  administration  of 
the  estate."  Did  he  not  mean  equally,  when  their  services  or 
liabilities  "were  equal,  or  nearly  so,  or  upon  some  other  princi- 
ple— in  both  cases  having  reference  to  their  respective  services? 
This  would  best  comport  with  the  views  of  an  equity  judge. 
The  apportionment  is  not  determined  as  in  case  of  partnership, 
by  positive  agreement  as  to  the  shares  of  each,  but  by  rules  of 
equity.  Those  rules  would  never  favor  the  one  who  neglected 
the  estate,  and  give  him  a  bounty  out  of  the  compensation 
earned  by  the  other. 

The  judgment  is  affirmed,  with  costs  to  the  defendant. 

[New  York  General,  Term,  May  7,  1855.   'Mitchell,  Gierke  and  Cowles 
Justices.] 


HoGAN  VS.  De  Peyster,  administrator,  &.c. 

A  testator  directed  his  real  and  personal  estate  to  be  converted  into  money,  as 
soon  as  convenient,  and  the  proceeds  to  be  securely  invested  in  the  most  pro- 
ductive manner ;  leaving  it,  however,  to  the  discretion  of  his  trustees  to  suffer 
such  part  of  his  personal  estate  as  was  then  invested  in  bank  stock  to  remain 
in  that  state,  so  long  as  they  might  deem  it  most  for  the  interest  of  the  testa- 
tor's family.  At  the  time  of  his  death,  in  January,  1836,  the  testator  held 
1000  shares  in  the  slock  of  the  Bank  of  the  Unlteil  States.  The  charter  of 
that  bank  expired  March  4,  1836,  and  on  the  18th  of  February,  1836,  the 
state  of  Pennsylraiiia  chartered  •'•'  The  United  States  Bank,"  an  institution  de- 
signed to  take  the  place  of  the  former ;  and  by  arrangement  between  the  two 
banks  the  stock  of  tlie  former  national  institution  was  transferred  to  the  new 
bank.  The  new  bank  subsequently  failed,  involving  nearly  a  total  loss  to  the 
8tockholdei"S.  Held  that  the  administrator,  cum  testamento  aanexo,  did  not 
render  himself  liable  for  the  loss  upon  the  testator's  stock,  merely  by  suffering 
such  stock  to  remain  in  the  state  it  was  in  at  the  testator's  death,  and  to  pass, 
as  the  rest  of  the  stock  did,  to  the  new  bank  ;  or  by  receiving  the  dividonfla 
upon  the  new  stock. 
• 

IN  EQUITY.     This  suit  was  originally  commenced  in  the 
late  court  of  chancery.     The  bill  was  filed  to  recover  of 


NEW  YORK— MAY,  1855.  \0 


Ho2an  V.  De  Pcvster. 


the  defendant  as  administrator  and  trustee,  the  difference  be- 
tween what  certain  bank  stock  actually  sold  for,  and  what  it 
should  have  been  sold  for  by  the  defendant,  in  the  performance 
of  his  duty  as  administrator  ad  colligendum,  administrator 
vith  the  Avill  annexed,  and  as  trustee. 

John  Clendenning  died,  leaving  a  will,  and  a  large  estate  and 
family^  and  the  defendant,  Frederick  De  Peyster,  was  appointed, 
first,  administrator  ad  colligendum,  and  afterwards  administra- 
tor with  the  will  annexed.  He  filed  a  bill  for  the  construction 
of  the  will ;  and  a  decree  adjudging  its  meaning,  and  appoint- 
ing the  defendant  trustee,  was  made  by  the  chancellor,  and 
affirmed  by  the  court  of  errors.  A  part  of  the  testator's  estate 
consisted  of  the  stock  of  the  Bank  of  the  United  States,  Avhich 
the  defendant  permitted  to  be  converted,  subsequently,  on  the 
expiration  of  the  bank  charter,  into  the  stock  of  the  United  States 
Bank,  chartered  by  the  state  of  Pennsylvania,  which  stock,  thus 
converted,  became  of  comparatively  little  value,  and  was  sold  at 
low  prices ;  and  the  plaintiffs  here  seek  to  recover  the  loss  sus# 
tained  on  that  part  of  the  said  stock  which  belonged  to  Mrs. 
Hogan  and  her  children. 

L.  R.  Marsh,  for  the  plaintiffs.  I.  It  was  the  duty  of  the 
defendant  to  have  sold  the  stock  of  the  National  Bank,  converted 
it  into  money,  and  brought  it  within  the  jurisdiction  of  the 
courts  of  this  state,  and  invested  it  either  in  the  public  funds,  or 
on  the  security  of  real  estate ;  those  being  the  two  modes  of  in- 
vestment of  trust  funds  recognized  and  sanctioned  by  the  courts. 
The  general  principle  contended  for  in  this  point  is  well  settled. 
(2  Wms.  on  Ex'rs,  1110.  1111.  1  Mad.  298.  5  Ves.  830. 
5  Pick.  96.     Ackerman  v.  Emott,  4  Barb.  626.) 

II.  But  when  should  the  defendant  have  sold  this  stock  } 
The  testator  died  28th  January,  1836.  About  ten  months  af 
terwards,  19th  November,  1836,  the  defendant  was  appointed 
administrator  ad  colligendum,  the  charter  of  the  national  bank 
having  expired  in  March  preceding,  (4th  March,  1836.)  His 
duty  as  such  administrator,  perhaps,  did  not  call  upon  him  to 
Bell,  but  only  to  collect  and  keep  safe.     But,  on  the  4th  of  Feb- 


102        CASES  IN  THE  SUPREME  COURT. 

Ilogan  V.  De  Peyster. 

ruary,  1837,  the  defendant  was  appointed  administrator  c«m  tes- 
tamcn/o  annexo.  (2  R.  S.  72,  §  22 ;  vol.  2,  p.  258,  \  22,  Uh  ed. 
Con/din  v,  Egerton^s  Adni'r,  21  Wend.  430  ;  ^S*.  C.  on  appeal, 
25  id.  224.  8  Paige,  810,  311.)  In  the  opinion,  in  the  case  of 
the  bill  filed  for  a  construction  of  this  very  will,  the  chancellor 
said,  "  The  administrator  with  the  will  annexed  is  probably  en- 
titled to  execute  all  the  trusts  of  the  will,  in  the  same  manner 
as  if  he  had  been  named  therein  by  the  testator,  as  the  executor 
and  trustee."  But  inasmuch  as  there  might  be  some  doubt 
Avhether,  as  such  administrator,  he  could  convert  the  renl  estate 
into  per»onalty,  he  provided,  in  that  decree,  for  the  defendant's 
appointment  as  such  trustee.  The  chancellor,  in  1840,  in  the 
case  of  Efferioii's  Adm^r  v.  Conklin,  25  Wend.  235,  l)efore 
cited,  says,  that  in  the  above  remark  in  8  Paige,  he  referred 
"  to  the  right  of  the  administrator,  with  the  will  annexed,  to  exe- 
cute the  trusts  of  such  will  in  relation  to  the  real  estate  of  the 
decedent."  By  the  general  law,  therefore,  applicable  to  admin- 
istrators with  the  will  annexed,  (21  Wend.  433,  and  pages  cited 
by  Cowen,)  and  by  the  above  statute,  the  defendant,  on  the  4tli 
February,  1837,  when  he  received  the  letters  of  administration 
cum.,  became,  at  least  as  far  as  regarded  the  personal  estate  of 
the  decedent,  vested  with  all  the  rights  and  powers,  and  sub- 
jected to  all  the  duties  and  responsibilities  of  an  executor  and 
trustee.  He  was,  therefore,  unless  otherwise  excused,  under 
the  duty,  immediately  after  Feb.  4,  1837,  of  selling  the  stock 
of  this  national  bank,  the  charter  of  which  had  expired  a  year 
before.  He  is,  therefore,  we  say,  liable  for  the  difference  be- 
tween its  then  or  highest  value  afterwards,  and  the  sum  for 
Avhich  he  subsequently  actually  sold  it.  This  amount  may  be 
the  subject  of  reference,  if  the  principle  is  decided.  Then,  on 
8th  June,  1840,  the  final  decree  was  made  in  the  case  commenced 
by  the  defendant,  to  obtain  a  construction  of  the  will ;  and.  as 
doubts  had  arisen  as  to  the  defendant's  power  as  administrator 
c//m,  to  convey  real  estate,  he  was  then  appointed  trustee  under 
tlic  will.  Now,  if  there  could  have  been  any  doubt  as  to  the  de- 
fendant's duty  as  administrator  cum,  in  reference  to  this  bank 
gtock,  there  could  certainly  be  none,  under  his  appointment  aa 


NEW  YORK— MAY,  1855.  103 


Hogan  V.  De  Peyster, 


trustee,  on  and  after  June  8, 1840.  Besides,  additional  obligations 
were  imposed  on  him.  by  the  request  of  Mrs.  Hogan  t)  him  t)  sell 
at  different  times.  Now  what  are  the  defendant's  alleged  excuses 
or  defenses  ?  1st.  He  says  the  testator,  by  his  will,  left  it  "  to  the 
discretion  of  my  said  trustees  to  suffer  such  part  of  my  personal 
estate  as  is  now  invested  in  bank  stock  to  remain  in  its  present 
state  80  long  as  they  may  deem  it  most  for  the  interest  of  my 
family."  We  answer  :  (1st.)  That  this  was  a  discretion  which  the 
testator  chose  to  bestow  upon  the  three  persons  he  had  named 
as  trustees.  It  was  not  a  discretion  that  attached  to  the  office 
of  trustee,  whoever  should  hold  it.  Besides,  the  obligation  to 
sell,  attached  to  the  defendant  as  administrator  cum^  before  his 
appointment  as  trustee.  2d.  But  this  bank  stock  did  not  re- 
main in  tlie  state  in  which  it  was  at  the  testator's  death,  after 
the  expiration  of  the  charter  of  the  national  bank,  and  espe- 
cially after  it  became  converted  into  the  stock  of  the  state  insti- 
tution of  Pennsylvania.  The  testator  died  28th  January,  1836, 
the  will  having  been  executed  seven  years  before,  to  wit,  22d 
Jul}^  1829.  The  words  were  really  written  in  1829,  though 
they  take  their  legal  date  and  existence  January  28,  1836.  The 
charter  of  the  bank  expired  March  4,  1836,  and  the  defendant 
was  appointed  administrator  ciim  4th  February  thereafter. 
When  he  took  this  administration,  therefore,  that  part  of  the 
testator's  estate  which  was  invested  in  the  stock  of  this  bank, 
was  not  in  the  same  state  it  was  in  at  the  testator's  death. 
Even,  therefore,  if  the  discretionary  clause  of  the  will  applied  to 
the  defendant,  in  his  character  of  administrator  ciim^  yet  he 
could  derive  no  excuse  from  it  for  not  selling  the  stock  imme- 
diately upon  receiving  such  letters,  because  of  the  great  change 
which  had  taken  place  in  the  investment.  The  testator  left  it  a 
productive  stock  of  a  living  corporation.  The  defendant  found 
the  charter  expired,  and  the  corporation  defunct.  Not  only  this, 
but  the  testator  left  it  invested  in  the  stock  of  a  national  bank,  and 
the  defendant,  as  administrator,  found  it  changed  into  the  stock 
of  a  state  bank,  and  allowed  it  to  remain  there.  The  testator  left 
it  in  a  sort  of  public  funds,  and  the  defendant  permitted  it  to 
enter  and  remain  in  a  private  corporation.     The  defendant  says 


104  CASES  IN  THE  SUPREME  COURT. 

Hogan  V.  De  Peyster. 

that  tlie  stock  was  specifically  bequeathed  by  the  will  to  the 
trustees  named  therein,  in  trust  for  the  uses  and  purposes 
therein  mentioned,  and  the  defendant,  as  administrator,  had  no 
power  to  sell.  (1.)  These  trustees  renounced.  The  defendant 
was  appointed  administrator  aim.  This  was  with  all  the  pow- 
ers and  obligations  of  such  an  administrator  generally.  He  was 
then  either  trustee  to  carry  out  the  will,  which  directs  the  con- 
version of  all  his  estate,  real  and  personal,  into  money  and  pro- 
ceeds invested  ;  or,  as  administrator  cum,  he  was,  in  the 
exercise  of  the  duties  of  that  office,  obliged  to  call  in  this  invest- 
ment. According  to  the  defendant's  doctrine,  inasmuch  as.  the 
whole  estate  was  thus  bequeathed,  the  administrator  cum  had 
nothing  to  do,  and  was  a  useless  appurtenance.  The  chancellor, 
in  the  case  before  cited,  says  :  "  The  administrator,  with  the 
will  annexed,  was  probably  entitled  to  execute  all  the  trusts  of 
the  will,  in  the  same  manner  as  if  he  had  been  named  therein 
by  the  testator  as  the  executor  and  trustee."  By  the  renuncia- 
tion of  the  trustees,  the  estate  did  not  vest  in  them  ;  and  all 
the  duties  of  exercising  diligence  to  secure  the  estate,  required 
of  executors  and  administrators  generally,  devolved  upon  the 
defendant  when  he  was  appointed  administrator  cutn.  (2.)  If 
there  were  any  force  in  this  idea,  advanced  by  the  defendant,  it 
altogether  ceased  when  he  was  in  point  of  fact  appointed  trus- 
tee in  June,  1840.  (3.)  The  defendant  says,  that  he  permit- 
ted it  to  remain  invested  as  aforesaid,  with  the  knolwedge, 
approbation  and  consent  of  the  complainant,  Wm,  Hogan,  who 
acted,  as  defendant  believes,  for  himself  and  wife,  ana  guardian 
of  the  other  complainants.  We  reply  :  (1st.)  There  is  no  evi- 
dence of  this — no  proof,  any  where,  that  either  Wm.  Hogan, 
Sarah  Hogan,  or  either  of  the  plaintiffs,  assented  to  tlic  continu- 
ance of  this  investment  in  this  stock.  (2d.)  But  if  there  were 
any  evidence  of  any  assent  of  said  William  Hogan  to  the  con- 
tinuance of  this  investment,  it  would  have  no  efi"ect  in  excusing 
the  defendant,  or  lightening  his  responsibility.  The  defendant 
was  the  administrator,  and  bound  to  do  his  duty.  Wm.  Hogan 
had  no  authority  to  assent  for  Mrs.  Hogan,  or  the  infant  chil- 
dren.    He  was  not  general  guardian  of  the  children,  but  only  ad 


NEW  YORK— MAY,  1855.  ]05 


Hogan  V.  De  Peyster. 


lilvm  in  the  suit  for  construction  of  the  will.  The  defendant 
3ays  that  the  plaintiffs  are  barred  from  any  recovery  herein,  by 
reason  of  his  various  accountings  before  the  master.  Now,  the 
evidence  on  this  subject  is  :  The  report  of  Master  Codwise, 
which  was  merely  on  an  order  requiring  him  to  divide  and  dis- 
tribute the  property  in  his,  defendant's,  hands,  amongst  the 
heirs.  It  had  not  the  slightest  connection  with  any  liability  the 
defendant  might  have  theretofore  been  subjected  to,  by  reason 
of  any  neglect  of  duty.  The  other  accountings  were  merely  of 
incomes.  And  the  final  accounting  was  also  only  of  income.  It 
was  not  an  accounting  of  any  damages  to  which  the  defendant 
might  be  liable  for  neglect  of  duty.  That  was  not  Avithin  the 
province  o*f  the  master.  It  is  not  pretended  that  any  thing  Avas 
ever  paid  therefor.  If  he  was  ever  liable,  nothing  was  done  on 
these  accountings,  to  the  adjudication,  payment,  or  waiver  of 
any  such  demand.  They  never  went  beyond  the  accounting  for 
moncA's  actually  received  and  paid  out,  or  invested,  or  pretended 
to  be  invested,  within  the  respective  periods.  They  took  no 
cognizance  of  the  inventoried  assets  of  the  estate,  or  the  value 
of  stocks,  or  the  liability  of  the  administrator  aim,  or  the  trus- 
tee, growing  out  of  omissions  or  commissions. 

Murray  Hoffman,  for  the  defendant.  I.  It  is  conceded  that 
the  defendant  had  no  power  in  the  premises,  so  long  as  his 
character  of  administrator  ad  colligendum  existed. 

II.  It  was  not  in  the  power  of  the  defendant,  as  adminis- 
trator with  the  will  annexed,  to  sell  the  stock.  It  was  only 
when  he  was  appointed  trustee,  under  the  decree  of  June  8th, 
1840,  that  this  power  was  acquired.  In  the  opinion  given  by 
Mr.  Hogan,  October  21st,  1840  this  is  clearly  and  positively 
insisted  upon. 

III.  But  supposing  that,  as  administrator,  the  defendant  pos- 
sessed ample  power,  he  was  fully  justified  in  omitting  to  sell  the 
stock,  and  holding  the  new  stock  in  the  state  bank,  as  its  substi- 
tute. (1.)  It  must  be  carefully  noticed  that  he  did  not  do  any 
act  to  effect  a  change  or  substitution  of  the  stock.  All  that  he 
did  was  so  far  to  recognize  it,  as  to  receive  the  dividends  which 

Vol.  XX.  14 


JOG  CASES  IN  THE  SUPREME  COURT. 

Ho;ran  v.  De  Peyster. 

were  paid.  And  tliese  were  divided,  and  paid  away  among  the 
parties  entitled  to  the  income  of  the  estate.  (2.)  The  suftering 
a  substitution  of  the  stock  was  a  justifiable  and  proper  exercise 
of  the  discretion  given  to  the  trustees  by  the  Avill,  or  necessarily 
vested  in  them  by  the  law.  The  second  clause  of  the  will  au- 
thorizes the  trustees  to  suffer  such  part  of  his  personal  estate 
as  was  invested  in  baak  stock  to  remain  in  its  present  state,  so 
long  as  they  should  deem  it  for  the  interest  of  his  family.  It 
is  matter  of  history,  that  the  fivilure  of  the  bank  to  obtain  a 
recharter  was  known  as  matter  of  fact,  and  certainly  before 
the  testator's  death.  That  identical  stock  could  not  be  expect- 
ed to  remain  in  its  then  state.  The  testator  had  numerous 
parcels  of  stock  of  other  banks.  Hence  this  clause  of  the  will 
is  either  wholly  inapplicable,  or  it  sanctions  the  continuation  of 
an  investment  in  bank  stock  at  the  trustees'  discretion.  But 
the  plaintiflfs  in  their  points  insist,  that  the  discretionary  power 
therein  given,  was  vested  in  th6  three  named  trustees,  and  diil 
not  attach  to  any  new  trustee.  Admitting  this,  it  follows  tliat 
the  power  did  not  vest,  and  the  clause  is  not  applicable  to  tlie 
defendant,  as  administrator  with  the  will  annexed.  His  duty 
and  liability  are  to  be  determined  upon  general  principles,  irre- 
spective of  the  clause,  which  did  not  apply  either  to  him,  or  to 
stock  situated  as  this  stock  was  when  he  became  such  adminis- 
trator. Was  it,  then,  in  the  exercise  of  an  honest  discretion 
to  leave  the  stock  in  the  new  bank?  Most  of  the  stockholders 
of  the  old  bank  took  or  retained  the  stock  in  the  new.  They 
became  stockholders  in  the  new  bank  without  any  action  of  their 
own,  but  by  force  of  the  act  of  Pennsylvania  merely.  The  late 
Mr.  Watts,  described  by  the  witness  Kearney  as  a  very  shrewd 
man  in  stocks,  retained  the  shares  in  the  new  bank.  Prior  to 
the  suspension  of  specie  payments,  and  from  March  to  July 
1836,  the  market  value  of  the  state  bank  stock  was  from  120  to 
126.  After  the  resumption  in  May,  1838,  and  from  June  tc 
July,  it  was  120  to  123.  In  November,  1839,  the  defendant 
considered  the  investment  in  such  stock  good,  on  behalf  of  his 
son,  who  took  some  under  Mr.  Watts,  and  Svished  not  to  sell 
The  continuance  of  the  stock  in  the   state  bank,  was  with  the 


I 


NEW  YORK— MAY,  1855.  JQT 


Ilogan  V.  De  Peyster. 


I 


approbation  of  every  one  interested  who  was  competent  to  as- 
sent or  approve.  They  were  aware  of  it ;  they  received  the 
dividends  in  the  share  of  income  which  was  divided  among 
them,  and  allowed  the  defendant  to  pass  his  accounts  before 
the  surrogate,  and  before  Master  Codwise,  without  objection, 
protest  or  cavil.  In  October,  1839,  a  meeting  of  some  of  the 
parties  in  interest  took  place,  when  the  propriety  (3f  selling  the 
stock  was  discussed.  One  of  the  parties  thought  it  ought  to 
be  sold.  Mrs.  Clendenning  left  it  to  defendant's  best  judg- 
ment. No  one  requested  it  to  be  sold.  Mrs.  Kearney  states 
that  she  has  heard  the  testator  say  he  would  not  keep  his  stock 
if  the  charter  was  not  renewed.  This  evidence  was  duly  ob- 
jected to,  and  clearly  is  inadmissible.  But  it  is  singular,  in- 
deed, that  it  was  not  communicated  to  the  defendant,  at  that  or 
some  other  meeting,  as  a  strong  inducement  to  operate  upon 
him.  The  acts  of  the  parties  in  1840,  after  the  decree  of  the 
court  of  chancery  declaring  the  rights  of  the  parties  under  the 
will,  are  of  great  importance.  On  the  27th  of  July,  1840,  Mr.  Ho- 
gan  writes  to  the  defendant,  stating  that  by  the  decree  in  June 
preceding,  he,  the  defendant,  had  now  power  to  act  in  relation 
to  the  stock,  which  no  one  had  before,  and  calling  his  attention 
to  the  point,  whether  it  was  stock  of  the  old  bank  or  of  the 
new.  Then  followed  the  opinion  of  Mr.  Hogan,  carefully  con- 
sidering the  questions,  dated  the  21st  of  October,  1840,  and  the 
letter  to  the  defendant  of  the  28th  of  October,  1840.  The  in- 
terviews and  correspondence  of  the  defendant  with  Dunlap  and 
others,  ensued,  -The  letter  of  Mr.  Hogan  of  the  23d  of  Sep- 
tember, 1841,  refers  to  them,  and  shows  that,  in  the  opinion  of 
the  counsel  of  the  bank,  the  decision  of  the  majority  of  the 
stockholders  bound  the  rest,  and  effected  the  change  of  the 
stock.  Then  followed  the  letter  of  the  parties  to  the  defend- 
ant, and  the  consequent  opinion  of  Mr. Wood.  The  failure  of  the 
bank  was  about  August,  1841.  During  the  period,  then,  from 
July,  1840,  to  December,  1841,  there  was  an  attempt  zealously 
and  wisely  carried  on  to  establish,  that  the  stock  in  question  was 
stock  of  the  old  bank,  and  not  of  the  new,  and  a  sale  during 
such  attempt  would  have  completely  defeated  it ;  and  it  is  absurd 


]0S  CASES  IN  THE  SUPREME  COURT. 

Hogan  V,  De  Pe3'ster. 

to  imagine  that  any  one  could  have  called  for  it.  At  a  meet- 
ing stated  hy  Mrs.  Kearney  to  have  taken  place  in  October, 
1840,  the  subject  was  discussed.  One  or  two  wished  a  sale— 
none  required  it.  It  was  plainly  left  to  the  judgment  of  the 
defemlant,  and  his  opinion  was  acquiesced  in.  No  trustee, 
placed  in  an  embarrassed  position  as  to  a  claim  very  compli- 
cated, ever  acted  in  better  faith,  or  more  honestly  fell  into 
an  error  of  judgment.  As  to  authorities,  it  is  sufficient  to  re- 
fer for  the  general  principle,  to  Story's  Equity,  (fee.  But  the 
case  of  Gi'ai/  v.  Lynch,  (8  Gill,  404,)  is  entirely  decisive  of 
the  present  case  as  far  as  the  judgment  of  the  highest  court  of 
another  state  can  influence  it.  There  the  testator  owned  stock 
in  the  old  Bank  of  the  United  States.  He  gave  authority  to 
vest  in  good  and  safe  stocks.  The  executors  and  trustees  as- 
sented formally  to  the  substitution  of  the  stock  of  the  state 
bank.  It  was  sought  to  make  them  responsible  for  the  loss, 
and  the  court  dismissed  the  bill.  I  will  not  quote  the  points 
or  reasonings  of  the  court.  The  case  deserves  full  considera- 
tion.  I  close  in  the  closing  language  of  the  opinion,  "  That  if. 
under  such  circumstances,  a  trustee  was  made  responsible  by 
this  court,  it  would  deserve  any  other  title  than  that  of  a  court 
of  equity."     This  bill  should  be  dismissed  with  costs. 

Marsh,  in  reply.  I.  The  defendant,  in  his  first  point,  takes 
it  for  granted  that  we  do  not  claim  to  hold  him  liable  as  admin- 
istrator ad  colliffeiiflum.  This  is  not  so,  unless  his  duty  as 
such  administrator,  to  collect  and  securely  hold  the  estate,  was 
consistent  with  his  permitting  it  to  depreciate,  become  changed 
into  worthless  securities,  and  fade  away. 

II.  The  defendant,  in  his  second  point,  says  that  he,  as  ad- 
ministrator with  the  will  annexed,  had  no  power  to  sell  the 
stock  ;  but  he  cites  no  authority  for  this  proposition,  resting  it 
solely  on  his  own  assertion.  But  we  have  shown,  in  the  plain- 
tiff's opening  points,  (point  2,)  that  the  defendant  had  such 
power ;  that  the  general  law  recognized  its  existence  in  him  ; 
that  the  revised  statutes  confirm  it ;  and  that  the  chancellor,  in 
considering  this   very  will,  (8  Paige,  310,  311,)   held  that  the 


NEW  YORK— MAY,  1855.  JOf) 


Hogan  V.  De  Pcyster. 


defendant,  as  such  administrator,  had  power  to  execute  all  the 
trusts  in  the  will,  and  consequently  to  dispose  of  the  stock  in 
question.  The  duty  to  sell  is  expressly  enjoined  by  the  will. 
This  order  and  discretion  is  mandatory,  imperative,  absolute. 
It  lies  at  the  bottom  of  the  whole  matter,  always  excepting 
the  legal  obligation  and  duty  of  the  administrator  to  realize 
effects,  independently  of  any  order.  The  defendant  says  that 
it  is  insisted  in  the  opinion  given  by  Mr.  Hogan,  that  the  ad- 
ministrator had  not  such  power.  This  opinion,  even  if  it  were 
correct  so  far  as  regarded  the  execution  of  certain  trusts,  as- 
suredly did  not  apply  to  the  ordinary  action  of  the  administra- 
tor for  realizing  and  securing  the  estate ;  that  was  his  proper, 
independent  duty,  whatever  disposition  of  such  estate  might 
afterwards  be  made.  But  whether  or  no,  what  has  this  opinion, 
gratis,  in  1840,  to  do  with  the  action  or  non^action,  or  neglect 
and  default  of  the  defendant,  through  1837-8-9  ?  He  was  al- 
ready in  fault  and  delinquent,  an  afterward  given  opinion  could 
not  save  him  from  the  consequences  of  antecedent  acts  or 
omissions  of  acts. 

III.  The  defendant,  in  his  third  point,  contends  that  even  if 
he  had  the  power,  yet  he  was  fully  justified  in  omitting  to  sell 
the  stock,  and  in  holding  the  new  stock  in  the  state  bank  as 
its  substitute.  (1.)  He  endeavors  to  establish  this  point,  in  the 
first  place,  by  saying  that  the  defendant  did  not  do  any  act  to 
effect  the  change  or  substitution  of  the  stock,  except  by  recog- 
nizing it.  This  very  recognition  of  the  change  or  substitution 
thus  admitted,  v^s  an  adoption  of  it,  equivalent  to  an  actual 
original  participation.  It  was  not  necessary^  that  he  should  do 
any  act  towards  effecting  the  change,  to  make  him  liable-  .V 
neglect  to  do  his  duty,  that  is  to  say,  to  withdraw  the  funds 
from  their  precarious  and  unsanctioned  position  in  the  state 
bank  stock,  and  invest  them  under  the  authority  or  in  accoi-d- 
ance  wath  the  principles  of  the  New  York  courts,  involved  the 
same  responsibility,  as  positive  wrongful  acts.  ( Vide  the  au- 
thorities cited  under  the  jdaintiff^s  2d  point,  viz  :  1  Madd. 
298  ;  5  Fe.sey,  839  ;  5  Pick.  96 ;  4  Barb.  626 ;  N.  Y.  Legal 
Ohs.  10,  J)'  321,  an  English  essay,  and  cases  cited  therein.) 


I  1  0  CASES  IN  THE  SUPREME  COURT. 

• : •  * 

Hogan  V.  Dc  Peyster. 

(2.)  The  defendant,  in  his  second  subdivision  of  his  third  point, 
contends  that  the  suffering  a  substitution  of  the  stock  was  a 
justifiable  and  proper  exercise  of  the  discretion  given  to  the 
trustees  by  the  will,  or  necessarily  vested  in  them  by  law.  We 
have  anticipated  and  answered  this  point,  in  the  first  subdivision 
of  the  plaintiff's  second  point  of  the  opening  argument.  The 
defendarjt  says,  in  sustaining  this  proposition,  that  the  second 
clause  of  the  will  authorizes  the  trustees  to  suffer  such  part  of 
his  personal  estate  as  was  invested  in  bank  stock,  to  remain  in 
its  present  state,  so  long  as  they  should  deem  it  for  the  interest 
of  his  family.  But  it  is  obvious,  that  when  it  became  convert- 
ed from  the  stock  of  the  national  institution,  with  all  its  guards 
and  checks  and  guarantees,  into  stock  of  the  state  bank,  which 
was  o1)liged  to  abstract  and  contribute  several  millions  of  its 
capital  to  state  improvements,  by  way  of  purchasing  its  char- 
ter, the  said  personal  property,  thus  metamorphosed,  did  not 
remain  in  its  then  "present  state,"  and  the  discretion  of  the 
defendant,  if  any  he  had,  became  annulled.  That  the  stock  in 
the  national  bank  "  did  not  remain  in  its  present  state,"  so  as 
to  come  within  the  discretion  given  by  the  will,  when  it  W'as 
changed  into  the  state  bank  stock,  is  patent  on  the  face  of  the 
charters.  The  first  bank,  with  i^35,000,000  capital,  was  held  to 
the  extent  of  one-fifth  by  the  government,  and  had  its  aid  and 
support.  The  second  bank  was  not  connected  with  the  govern- 
ment, but  was  opposed  by  it ;  and  out  of  its  capital  was  required 
to  pay  .'1^2,000,000  bonus,  to  loan  about  $6,000,000  on  disad- 
vantageous terms,  and  to  subscribe  to  a  variety  of  companies 
of  uncertain  character  and  doubtful  results,  large  amounts  of 
.stock,  without  any  control  over  the  action  or  management  of 
such  companies.  No  discreet  man  would  consider  stock  in  the 
second  bank  to  be  in  the  same  state  as  stock  in  the  first 
bank.  The  defendant  argues  that  the  testator  knew,  before 
his  death,  that  the  national  bank  had  failed  to  obtain  a  rcchar- 
ter,  and  that  conse([uently  this  particular  clause  of  the  will,  giv- 
ing the  trustees  di.scretion  to  allow  such  of  his  personal  estate  as 
was  invested  in  bank  stock,  to  remain  in  its  then  present  state^ 
applied  to  other  bank  stocks,  of  which  he  held  a  number,  and 


KEW  YORK— MAY,  1855.  |  \  [ 


Hogan  V.  De  Pejstcr. 


was  inapplicable  to  this  stock.  It  is  evident  that  the  discretion 
given  by  this  clause  of  "the  will,  does  not  cover  the  state  bank 
stock,  tne  sale  of  which  is  absolutely  Avithin  the  terms  of  the 
positive  order  to  sell.  Of  course,  then,  as  the  defendant  shows 
that  the  clause  of  the  will  from  which  he  seeks  to  draw  his 
discretionary  power  has  no  application  to  the  present  case,  the 
argument  on  that  point  would  seem  to  be  ended.  The  defend- 
ant says,  that  if  the  discretion  did  not  vest  in  the  trustee,  the 
power  to  sell  did  not.  But  the  order  to  sell  is  not  a  power, 
technically  so  called,  or  trust,  or  connected  or  entangled  with 
any  trust,  but  a  naked  order ;  and  its  fulfillment  gives  the 
means  to  execute  the  trusts,  and  to  administer  the  estate.  Be- 
sides, the  law,  independent  of  the  explicit  order,  devolved  on 
the  administrator  the  duty  to  sell. 

The  defendant  contends  that  it  was  in  the  exercise  of  an  honest 
discretion  to  leave  the  stock  in  the  new  bank ;  because  most  of 
the  stockholders  of  the  old  bank  took  or  retained  their  stock  in  the 
new.  We  reply  :  (1.)  That  the  judgment  of  the  old  stockholders 
is  not  the  criterion  adopted  by  this  court.  If  they  had  chosen  to 
sell  their  stock  and  invest  the  proceeds  in  the  personal  obliga- 
tions of  Mr.  Biddle,  it  would  have  been  no  justification  for  a 
similar  action  by  the  defendant  with  these  trust  funds. 
(2.)  Those  stockholders  who  permitted  their  stock,  by  going  into 
the  new  bank,  to  be  devoted  to  the  internal  improvement  of 
Pennsylvania,  exercised  their  discretion  very  injudiciously ; 
for,  as  Mr.  Robbins  says,  in  the  part  of  the  evidence  cited  by 
the  defendant,  it  "  was  very  much  to  their  subsequent  regret." 
(3.)  It  was  not  a  matter  of  discretion  with  the  defendant  at  all. 
He  was  bound,  with  all  diligence,  to  rescue  the  funds  from  the 
grasp  of  this  cotton-speculating,  bonus-paying,  reckless-loaning 
institution  of  Pennsylvania,  and  invest  them  at  home,  according 
to  the  modes  sanctioned  by  our  courts.  The  defendant  says 
that  the  stockholders  of  the  old  bank  became  stockholders  in 
the  new,  without  any  action  of  their  own,  but  by  force  of  this 
act  of  Pennsylvania  merely.     We  reply  : 

(1.)  The  sanction  of  silence,  and  the  subsequent  recognition 
Df  the  new  bank,  were  tantamount  to  positive  affirmative  action, 


I  12  CASES  IN  THE  SUPREME  COURT. 

Ilogan  V.  De  Pej'ster. 

and  charged  with  the  same  responsibilities.  (2.)  We  L.  IJ  the 
defendant  liable  for  not  having  interfered,  affirmatively,  and  by 
withdrawing  the  funds,  prevented  them  from  passing  into  the 
state  bank. 

The  defendant  says  that  the  continuance  of  the  stock  in  the 
state  bank  was  with  the  approbation  of  every  one  interested 
who  was  competent  to  assent.  We  reply  :  (1.)  If  it  was  so  it 
would  not,  surely,  justify  the  defendant,  so  far  as  those  who 
were  not  competent  to  assent  were  concerned.  No  one  had  au- 
thority to  assent  for  them.  The  order  to  sell — the  duty  to  i^ell — 
were  imperative.  The  consent  of  Mr.  Hogan  that  it  should  re- 
main, if  given,  which  is  denied,  would  not  alter  the  duty  of  the 
administrator,  or  lessen  his  liability.  He  was  not,  by  the  terms 
of  the  will,  a  consenting  party;  his  interests,  too,  were  adverse 
to  those  of  the  cestiiis  que  trust,  and  as  for  the  infants  he  was 
only  guardian  ad  litem,  and  not  in  rem,  not  of  their  property 
interests.  (2.)  But  we  have  shown,  in  the  plaintiff's  opening 
point  2,  sub.  3,  that  the  above  proposition  of  the  defendant  is 
not  correct  in  point  of  fact. 

The  defendant  alleges  that  the  parties  who  were  competent 
to  assent  were  aware  that  the  stock*  had  been  changed.  This 
would  not  justify  the  defendant  as  to  those  not  competent  to 
assent.  The  question  is  not  what  knowledge  some  of  the 
ccstuis  que  trust  may  have  had,  but  what  was  the  legal  duty  of 
the  defendant  as  such  administrator  and  trustee.  That  duty  did 
not  depend  upon  the  knowledge  of  those  for  whose  benefit  he 
held  the  fund.  The  defendant  says  that  they  received  the  divi- 
dends in  the  share  of  income  which  was  divided  among  them, 
and  allowed  the  defendant  to  pass  his  accounts  before  the  sur- 
rogate and  master  without  objection.  The  ccstuis  que  trust 
received,  doubtless,  whatever  the  trustee  chose  to  pay  them  as 
dividends ;  but  whether  they  knew  where  they  came  from,  is 
neither  apparent  nor  important.  Such  receipt  did  not  adjudicate 
and  settle  any  question  relating  to  the  defendant's  negligence. 
The  accountings,  as  by  reference  will  appear,  embraced  only  the 
moneys  received  from  income,  sales  of  lapsed  shares  of  estate, 
and  amounts  paid  in  on  account  of  principal  for  re-investment 


NEW  yore:— MAY,  1855.  ^  J  ]  3 


Hogan  V.  De  Peyster. 


No  examination  was  had  as  to  the  value  of  the  investments  of 
principal,  whether  made  by  the  testator  in  his  lifetime,  or  by 
the  administrator  since.  Such  accounting  for  1000  shares  of 
stock  merely  extended  to  the  production  of  the  certificates  of 
stock.  Nothing  is  therein  stated  as  to  liability  -for  not  convert- 
ing into  money  at  the  proper  time  ;  that  was  not  the  province 
of  the  master.  Besides,  the  bill  in  this  case  was  filed  before 
such  accounting,  and  the  matter  was  before  the  court,  and  not 
before  the  master. 

The  defendant  urges  that  no  trustee,  placed  in  an  embar- 
rassed position  as  to  a  claim  very  complicated,  ever  acted  in 
better  faith,  or  more  honestly  fell  into  an  error  of  judgment. 
We  reply  :  (1.)  There  was  not  the  slightest  complication  about 
the  matter.  The  defendant's  duty  was  very  plain — no  turnpike 
plainer;  simply  to  sell  the  stock  and  invest  the  proceeds  un- 
der the  sanction  of  the  court.  It  is  the  duty  of  the  adminis- 
trator to  gather  into  his  hands  and  realize  the  personal  property 
of  the  estate,  so  as  to  have  it  ready  for  distribution  according 
to  law — or,  application  under  a  will.  Kow  simple  is  this  prop- 
osition ;  it  is  the  fundamental  principle  of  administration  ;  it  is 
common  sense,  it  is  justice,  it  is  law.  Parties  who  are  abso- 
lute owjiers  of  stocks,  may  indulge  in  speculative  ideas  of  fu- 
ture and  contingent  values  ;  not  so  an  administrator.  (2.)  It 
is  not  necessary  to  a  recovery  that  the  defendant  should  be 
proved  to  have  acted  dishonestly.  If  he  chose  to  swerve,  though 
from  the  best  motives,  from  that  plain  path  of  duty  and  entire 
safety  prescribed  for  administrators  and  trustees,  the  risk  of 
loss  is  upon  him.  No  better  illustration  of  this  principle  could 
be  found,  than  in  the  case  cited  from  4  Barb.  626,  where  the 
court,  taking  pains  to  testify  to  the  high  character  and  integrity 
of  Judge  Emott,  yet  held  him  strictly  to  the  rule. 

The  defendant's  search  has  brought  to  light  one  case,  (8  Gill, 
404,)  which  he  thinks  is  entirely  decisive  of  the  present.  He 
seems  to  have  forgotten  that  in  that  case  the  express  direction 
of  the  testator  to  invest  in  stocks  took  the  case  out  of  the  very 
rule  of  equity  on  which  we  rely.  No  such  authority  was  given 
by  the  will  of  Mr.  Clendenning.     It  is,  besides,  to  be  remarked 

Vol.  XX.  15 


114  CASES  IN  THE  SUPREME  COURT. 

Ilogan  V.  De  Peyster. 

of  this  case  in  Gill,  that  the  Maryland  law  is  loose  in  regard  to 
the  duties  of  executors,  administrators  and  trustees,  never  hav- 
ing adopted  the  English  rule.  This  is  suflficiently  evident  from 
the  opinion  of  Dorsey,  J.,  who,  in  delivering  the  judgment  of 
the  court,  remarks :  "  In  the  course  of  the  argument  of  the  va- 
rious points  relied  on  in  this  case,  to  charge  the  defendant  with 
the  loss  complained  of,  an  immense  mass,  both  of  English  and 
American  authorities,  have  been  referred  to,  to  prove  that,  in 
the  states  or  country  where  those  decisions  were  made,  an  in- 
vestment of  a  trust  fund  by  executors,  guardians  or  trustees,  in 
bank  stock,  was  a  breach  of  trust,  and  subjected  those  by 
whom  it  was  made  to  all  the  losses  and  casualties  resulting 
therefrom.  In  answer  to  these  authorities  it  might  perhaps 
be  sufficient  to  say,  that  the  English  chancery  rule  in  regard 
to  the  securities  in  which  trust  funds  can  only  be  legitimately 
invested,  has  never,  literally  or  analogically,  been  extended  to 
Maryland ;  and  that  the  American  authorities  cited,  for  the 
most  part  depend  on  statutory  enactments  of  the  state  in  whicli 
those  decisions  have  been  made,  or  rest  on  principles  sanctioned 
by  the  courts  of  those  states,  but  which  have  never  l)een  adopt- 
ed, directly  or  indirectly,  in  the  state  of  Maryland."  Magru- 
der,  J.,  in  his  dissenting  opinion,  arrives  at  a  conclusion  more 
in  accordance  with  right,  and  Avith  English  and  American  law. 
He  says  :  "  I  must,  however,  think  that  the  loss  here  to  be  "sus- 
tained, ought  to  be  borne  by  men  who  undertook  the  trust  and 
then  transcended  the  bounds  of  their  trust  duty,"  &c. 

IV.  It  will  be  perceived  that  the  defendant  does  not  any 
where  contend  in  his  points  and  argument  that  he  was  not  liable 
as  trustee  for  not  having  sold  the  stock  immediately  upon  his 
appointment  as  such.  His  main  argument  consists  of  the  vari- 
ous divisions  and  subdivisions  under  and  in  support  of  his  third 
point,  which  is  that,  "  supposing  that  as  administrator,  the  de- 
fendant possessed  ample  power,  he  was  fully  justified  in  omit- 
ting to  sell  the  stock,"  &c.  And  yet  we  had  contended,  in  our 
second  opening  point,  that  even  if  the  defendant  was  not  liable 
in  his  capacity  of  administrator,  he  surely  was  as  trustee. 

V    On  the  whole,  then,  we   say  it  is  the  duty  of  an  aciminia- 


NEW  YORK— MAY,  1855.  115 


Hoaan  V.  De  Pevster. 


trator  to  collect,  realize,  and  hold  securely,  the  personal  estate 
of  the  decedent,  so  that  it  be  ready  for  distribution  ;  or,  in 
case  of  a  will,  for  application  under  the  directions  of  such  wilL 
An.  order  in  such  will  that  he  should  so  realize  and  convert 
into  money,  if  it  do  not  strengthen  and  enforce  the  obliga- 
tion already  imposed  on  him  by  the  law  of  administration,  cer- 
tainly takes  away  any  reason  for  favorable  considei'ation  in  the 
event  of  injury  through  his  neglect.  The  defendant  was  ap- 
pointed administrator  cum  testamenlo  amie.To,  Feb.  4,  1837  ; 
in  Feb.  1838,  he  had  become  derelict  from  duty,  and  so  con- 
tinued through  1838.  1839,  1840,  and  throughout.  His  respon- 
sibility and  liability  accrued  and  was  conclusive  upon  him  in 
1838.  No  after  correspondence,  no  requests  or  non-requests, 
or  refusals  of  requests,  no  after  given  opinions,  correct  or  incor- 
rect, in  1839,  1840,  or  any  after  time,  of  parties  interested  or 
not  interested,  agreeing  or  disagreeing,  of  distributees  or  cestuis 
que  trust,  (all  infants.)  can  be  urged  in  palliation  of  a  plain 
neglect  of  duty,  in  1837  and  1838. 

By  the  Court.  Mitchell,  P.  J.  The  testator  made  his  will 
in  1829,  and  died  January  28,  1836.  On  the  4th  of  February, 
1837,  the  defendant  was  appointed  administrator  with  the  will 
annexed.  The  testator,  at  his  decease,  held  1000, shares,  of  ^100 
each,  in  the  stock  of  the  Bank  of  the  United  States — the  Na- 
tional institution.  The  charter  of  that  bank  expired  on  the 
4th  of  March,  1836.  On  the  18th  of  February  1836  the  state 
of  Pennsylvania  chartered  "  The  United  States  Bank,"  the  insti- 
tution of  that  state.  This  last  institution  was  intended  to  take 
the  place  of  the  former,  and  it  was  generally  supposed  that  it 
would  do  so,  to  a  great  extent ;  those  who  disliked  the  first  ex- 
tending an  equal  dislike  to  the  second,  and  those  who  had  con- 
fidence in  the  first  generally  reposing^  an  equal  confidence  in  the 
second.  The  testator,  by  the  second  clause  in  his  will,  directed 
his  real  and  personal  estate  to  be  converted  into  money,  as  soon 
as  convenient,  after  his  decease,  and  the  proceeds  to  be  securely 
invested  in  the  most  productive  manner,  "  leaving  it,  however, 
to  the  discretion  of  my  said  trustees  to  suffer  such  part  of  my 


116  OASES  m  THE  SUPREME  COURT. 

Hogan  V.  De  Pyster. 

personal  estate  as  is  now  invested  in  bank  stock  to  remain  in 
its  present  state,  so  long  as  they  may  deem  it  most  for  the  in- 
terest of  my  family."  The  testator  must  specially  have  referred 
to  this  stock,  as  it  formed  a  large  part  of  his  estate,  and  espe- 
cially of  the  part  invested  in  bank  stock.  He  must  have  known 
what  his  will  was,  in  the  month  when  he  died,  and  that  this  dis- 
cretion applied  to  this  stock  ;  and  he  must  also  have  known  that 
the  national  institution  would  not  then  probably  be  rechartered. 
He  must  therefore  be  considered  as  sanctioning  the  continuance 
of  this  stock  either  in  the  same  bank  if  re-incorporated,  or  in 
one  substantially  similar,  or  which  might  be  regarded  as  in  some 
sense  its  successor.  If  congress  had  rechartered  the  same  bank, 
the  case  would  have  been  clear.  If  it  had  chartered  a  new  in- 
stitution on  a  similar  plan,  with  a  right  to  subscribe  open  to  all, 
and  by  arrangement  between  the  new  and  old  banks  this  sub- 
scription had  been  transferred  to  the  new,  his  intention  would 
probably  have  been  that  such  transfer  should  be  made.  Here 
the  difference  was  that  a  state  institution  took  the  place  of  the 
national  one,  and  by  arrangement  between  them  the  stock  was 
thus  transferred.  There  was  no  more  reason  to  apprehend  loss 
from  the  institution  having  a  state  charter  than  from  its  having 
a  national  one.  •  The  executors,  therefore,  could  not  be  charged 
with  any  breach  of  duty  in  not  interfering  to  prevent  (if  they 
could  have  prevented)  this  arrangement  between  the  two  inst 
tutionSj  or  in  not  claiming  payment  of  the  value  of  their  stock 
from  the  old  institution.  The  defendant  did  nothing  to  aid  the 
transfer,  and  when  asked  to  take  measures  to  make  the  old  bank 
liable  (as  he  had  not  assented  to  it)  no  proof  is  shown  that  he 
did  not  take  a  course  satisfactory,  at  the  time,  to  the  plaintiffs. 
He  was  advised  by  counsel  that  it  was  inexpedient  to  attempt 
such  a  suit  after  dividends  had  been  accepted  from  the  state  in- 
stitution. The  administrator  barely  suffered  the  stock  to  re- 
main in  the  state  in  which  it  was  at  the  testator's  decease,  and 
to  pass  as  the  rest  of  that  stock  did,  except  the  part  subscribed 
by  the  United  States ;  and  then,  finding  it  so  transferred  as  by 
a  comm:)n  consent. of  the  stockholders,  he  received  the  dividends 


:N"  E W  YOEK-  may,  1855.  1 1 7 


Hogan  r.  De  Peyster. 


on  the  new  stock.  This  was  not  a  new  investment  by  him. 
The  case  of  Ackerman  v.  Emott,  (4  Barb.  626,)  shows  the  dis- 
tinction between  the  two  cases,  and  that  an  executor  is  liable 
for  an  unauthorized  investment  by  himself,  on  personal  securi- 
ties or  bank  stock,  but  admits  that  he  is  not  liable  for  permit- 
ting such  investments  made  by  his  testator,  to  continue.  Parker, 
V.  C.  says,  {p.  635,)  the  case  of  Powell  v.  Evans,  (5  Ves.  838,) 
held  that  executors  who  neglected  to  call  in  money  lent  by  the 
testator  on  a  bond,  should  be  charged  with  the  loss  that  might 
be  sustained  by  the  subsequent  failure  of  the  obligors.  He 
adds,  "  this  doctrine  has  not  perhaps  been  carried  to  this  extent 
in  this  state.  The  case  of  Thompson  v.  Brown,  (4  John.  Ch. 
Rep.  619,)  may  be  regarded  as  somewhat  modifying  it."  •'  If 
the  rule  has  not  been  so  rigidly  enforced  here,  as  to  collecting 
money  already  invested  by  the  testator ,  I  think  it  has  been 
equally  strict  with  the  English  courts,  in  insisting  upon  proper 
investments,  when  made  by  the  trustee."  "  An  examination 
of  that  case,  {^Thompson  v.  Brown,)  however,  shows  that  it  was 
not  a  case  of  investment  made  by  the  administrators.  They 
only  permitted  the  business  to  be  carried  on  as  they  found  it. 
Chancellor  Kent  there  says,  '  This  was  not  a  new  and  distinct 
original  trading  with  the  assets  voluntarily  entered  into  by  the 
administrators.  They  found  a  store  of  goods  in  possession  of  a 
surviving  partner,  and  they  had  no  alternative  but  either  to 
suffer  him  to  go  on  and  sell  on  the  usual  terms  and  under  a 
continuation  of  the  confidence  reposed  in  him  by  the  intestate, 
or  to  divide  the  goods  and  sell  the  store  of  R.  at  auction."  The 
vice  chancellor  thus  approves  of  that  case  and  of  the  distinction 
between  it  and  the  one  before  him,  and  on  that  distinction  sus- 
tains his  own  decision  as  consistent  Avith  that  case  and  with 
Brown  v.  Campbell,  {^Hopkins,  233.)  This  last  case  is  also 
approved,  on  the  same  distinction,  in  the  opinion  delivered  at 
the  general  term,  by  Justice  Strong.  aflSrming  vice  chancellor 
Parker's  decision.  He  says  (4  Barb.  647)  "  In  Brown  v.  Cam.p- 
bell  Chancellor  Sanford  sustained  the  exchange  of  the  7iotes  of 
the  Union  Cotton  Manufactory  for  the  stock  of  the  Otsego  Cot- 


1 18        OASES  IN  THE  SUPREME  COURT, 


Hogan  V.  De  Peyster. 


ton  Manufiictory.  That  however  was  not  an  original  investment 
of  money,  but  simply  the  exchange  of  one  doubtful  security  for 
another,  and  might  have  been  the  best  arrangement  which  could 
have  boon  made." 

This  transaction,  if  the  administrator  had  actively  engaged  in 
it,  would  have  been  only  an  exchange  of  one  security  or  invest- 
ment not  approved  by  the  courts,  for  another  of  the  like  nature, 
and  generally  considered  at  the  time,  equally  safe,  and  would  at 
that  time  appear  a  much  better  arrangement  than  a  contest  with 
the  old  bank  for  the  payment  of  the  testator's  interest  in  the 
stock — a  contest  which  probably  could  not  end  until  all  the 
claims  against  the  bank  had  been  settled  ;  and  then  (if  an  opin- 
ion entertained  by  many  was  correct,  and  the  old  bank  was  real- 
ly insolvent)  would  have  resulted  in  a  total  loss  of  the  stock 
and  the  payment  of  heavy  costs  and  counsel  fees.  In  this  case 
quite  as  much  as  in  Thmnpson  v.  Brown,  or  in  Brown  v.  Camp- 
bell, the  administrator  was  justified  in  suffering  the  exchange 
of  investments  to  be  made,  and  ought  not  to  be  held  account- 
able for  any  supposed  loss  that  has  resulted.  He  had  no  alter- 
native but  to  suffer  the  change  which  at  the  time  must  have 
appeared  expedient,  or  to  enter  into  a  controversy  which  prob- 
ably would  have  resulted  no  better  than  the  course  which  he 
adopted. 

Could  an  executor  be  blamed  who  allowed  his  testator's  shares 
in  tlie  stock  of  the  chartered  Chemical  Bank  to  become  part  of 
the  stock  of  the  new  bank  under  the  general  law.  It  is  be- 
lieved that  an  eminent  lawyer,  who  held  such  stocks  as  executor 
threatened  a  suit  against  the  new  bank  to  compel  it  to  allow  him 
to  come  in  and  participate  in  its  stock.  Yet  the  banks  are  en- 
tirely distinct  in  interest.  So  it  is  believed  that  generally, 
when  the  charters  of  old  banks  have  expired,  their  stock  has 
l)een  transferred  to  the  new  bank  of  the  same  name,  unless  ex- 
press dissent  was  manifested  ;  and  that  such  dissent  seldom 
occurred.  This  shows  that  the  administrator  was  guilty  of 
no  negligence  in  not  interfering  with  the  transfer  that  was 
made. 


NEW  YORK— MAY,  1855.  ng 


United  States  Trust  Co.  of  N.  Y.  v.  Brady. 

The  bill  should  be  dismissed ;  and  as  the  administrator  is 
not  in  fault  and  should  not  be  subjected  to  the  payment  of 
his  solicitors'  costs,  it  is  with  costs. 

[New  York  General  Term,  May  7,  1855.     Mitchell,  Cltrke,  and  Cowles^ 
Justices.] 


30      39 

The  United  States  Trust  Company  op  New  York,  re-        ^atlsj 
ceiver  of  the  Knickerbocker  Savings  Institution,  vs.  Brady. 

Where  moneys  deposited  with  the  Knickerbocker  Savings  Institution,  were  loaned 
by  such  institution  to  the  defendant,  upon  his  promissoiy  note,  payable  on 
demand,  secured  by  the  hypothecation  of  32  shares  of  the  capital  stock  of  the 
Knickerbocker  Bank ;  it  was  held  that  the  note  was  not  a  violation  of  the 
charter  of  the  savings  institution,  nor  of  the  act  of  April  15,  1853,  relative  to 
savings  banks  in  the  city  and  county  of  New  York  and  the  county  of  Kings. 
{Laws  of  1851,  ch.  100;  of  1853,  ch.  257.) 

The  6th  section  of  the  act  of  1853  was  intended  to  be,  and  is,  only  a  prohibition 
against  the  loaning  of  the  funds  of  savings  institutions  on  mere  personal  secu- 
rities. 

A  loan,  when  the  note  of  the  borrower,  payable  on  demand,  is  taken,  is  not  a  loan 
on  the  security  of  that  note.  The  note  is  only  an  evidence  of  the  debt.  If 
stock  is  hypothecated  to  secure  the  payment  of  the  note,  the  loan  will  be 
deemed  to  have  been  made  upon  the  stock. 

The  charter  of  the  United  States  Trust  Company  of  New  York,  is  not  uncon- 
stitutional. 

That  company  is  not  a  corporation  created  for  banking  purposes,  within  the 
meaning  of  section  4  of  article  8  of  the  constitution. 

The  constitution  gives  the  legislature  the  power,  in  its  discretion,  to  create  cor- 
porations other  than  banks,  by  special  charter.  And  when  that  discretion  has 
been  exercised,  the  courts  cannot  review  the  action  of  the  legislature. 

ri'^HE  nature  of  this  action,  and  the  defense  thereto,  appear 
X  concisely  from  the  opinion  of  the  court.  The  action  was 
tried  before  his  honor,  Justice  Clerke,  without  a  jury,  at  the 
city  hall  in  the  city  of  New  York,  on  the  16th  of  March,  1855, 
and  a  jud(:;ment  rendered  pro  forma  for  the  plaintiffs,  for  the 
amount  claimed  upon  the  note  in  suit,  with  interest,  &c.  The 
case  was  directed  to  be  heard  before  the  general  term  in  the 
first  instance. 


]20  CASES  IN  THE  SUPREME  COURT. 

Uuited  States  Trust  Co.  of  N.  Y.  v.  Brady. 
Chas.  H.  Hunt,  for  the  plaintiff. 

John  Graham,  for  the  defendant. 

•  By  the  Court,  Mitchell,  P.  J.  The  Knickerbocker  Sav- 
ings Institution,  chartered  by  the  act  passed  April  8,  1851, 
chapter  100,  amended  by  chapter  257  of  laws  of  1853,  while  in 
existence,  and  in  the  course  of  its  business,  on  the  7th  of  Jan- 
uary, 1854,  out  of  the  moneys  deposited  with  it,  loaned  to  the 
defendant  $700,  taking  from  him  as  security  for  its  repayment 
when  required,  an  hypothecation  of  thirty-two  shares  of  the 
capital  stock  of  the  Knickerbocker  Bank,  which  stock  was  own- 
ed by  the  defendant,  and  Avas  of  the  nominal  value  of  $800,^ 
and  also  taking  his  note,  promising  to  pay  the  $700  on  demand 
with  interest.  The  savings  institution  afterwards  became  insol- 
vent, and  its  assets  and  affairs  passed  b}'  an  order  of  a  justice  of 
the  court,  to  the  plaintiff  as  receiver.  This  action  is  brought  to 
enforce  payment  of  the  note.  The  complaint  counts  only  upon 
the  note.  The  above  facts  are  in  substance  averred  in  the  com- 
plaint and  answer,  and  were  admitted  by  both  parties  at  the 
trial ;  and  no  proofs  were  given  on  either  side. 

The  defendant  claims  that  the  transaction  was  in  violation  of 
both  of  said  acts,  and  particularly  of  the  6th  section  of  the 
latter  act ;  and  that  the  plaintiff  is  not  the  lawful  holder  of  the 
note.  Judgment  was  rendered,  at  the  circuit,  in  favor  of  the 
plaintiff,  for  the  amount  claimed,  with  interest  and  costs,  which 
judgment  is  now  ihe  subject  of  review  by  the  court  at  general 
term. 

The  note  in  question  was  not  a  violation  of  the  charter  of  the 
savings  institution,  nor  of  the  act  of  1853.  The  6th  section  of 
the  latter  act  was  intended  to  be,  and  is,  only  a  prohibition 
against  the  loaning  of  the  funds  of  savings  institutions  on  mere 
personal  securities.  It  was  intended  for  the  protection  of  the 
depositors,  who,  being  generally  in  moderate  circumstances,  and 
not  well  able  to  take  care  of  their  funds,  would  wish  to  deposit 
them  where  they  would  be  safe.  The  legislature  meant  to 
make  certain  the  securities  to  be  taken  for  them  by  prohibiting 


NEW  YORK— MAY,  1855.  121 


United  States  Trust  Co.  of  N.  Y.  v.  Brady. 

loans  on  personal  securities,  and  requiring  that  the  loans  should 
be  on  certain  stocks  or  on  mortgages.  A  loan,  when  tlie  note 
of  the  borrower,  payable  on  demand,  is  taken,  is  not  a  loan  on 
the  security  of  that  note.  That  note  is  only  an  evidence  of  the 
debt.  These  banks  are  regarded  as  quasi  guardians  or  trustees 
for  their  depositors.  A  statute  that  no  guardian,  executor  or 
trustee  should  loan  the  funds  of  the  estate  on  notes,  drafts  or 
other  personal  securities  would  not  make  void  a  note  taken  in 
this  way  ;  for  that  would  defeat  the  very  object  of  the  legisla- 
ture, which  was  to  protect  and  secure  the  depositors  in  the  one 
case,  or  the  beneficiaries  of  the  estate  in  the  other.  The  pro- 
hibition was  not  to  protect  the  public  against  any  evil  which 
could  come  to  it  from  those  banks  holding  personal  securities, 
but  to  save  the  money  of  the  depositors. 

A  mortgagor,  when  sued  upon  his  bond,  could  not  set  up  that 
the  latter  is  void  under  the  section  in  question.  In  that  case 
the  loan  would  be,  not  upon  the  bond,  but  upon  both  the  bond 
and  mortgage ;  principally  the  latter.  In  the  present  case, 
the  loan  may  be  said  to  have  been  made  upon  the  hypothe- 
cated stock,  with  the  note  as  evidence  of  the  debt. 

If  the  note  were  void,  and  the  point  made  by  the  defendant's 
counsel,  that  the  action  should  have  been  for  money  lent,  were 
technically  sound,  {See  Utica  Ins.  Co.  v.  Kip,  8  Cowen,  20,) 
such  a  count  might  be  added  to  the  complaint,  in  any  stage  of 
the  action,  or  the  complaint  would  be  considered  as  amended 
accordingly ;  or,  as  these  facts  are  stated  in  the  answer,  they 
could  be  treated  as  proved  at  the  trial,  and  the  defendant  could 
not  object  to  them  on  tlie  ground  of  variance,  as  he  could  not 
pretend  that  he  had  been  misled.     {Code,  §§  169,  170,  275.) 

The  charter  of  the  United  States  Trust  Company  of  New 
York  is  not  unconstitutional.  It  is  not  a  corporation  created 
for  banking  purposes,  within  the  meaning  of  section  4,  of 
article  8,  of  the  constitution.  Banking  is  there  used  in  its  then 
and  still  familiar  and  popular  sense,  that  business  which  might 
be  carried  on  by  banking  associations  under  the  law  to  author- 
ize the  business  of  banking,  passed  April  18,  1838.  That  law 
had  been  amended  and  reference  made,   each  time,  to  its  title 

Vol.  XX.  16 


122  OASES  IN  THE  SUPREME  COURT. 

United  States  Trust  Co.  of  N.  Y.  v.  Brady. 

authorizing  "  the  business  of  banking"  before  the  constitution 
was  adopted,  in  1840,  ch.  363,  in  1841,  ch.  26,  ch.  319,  in  1844, 
ch.  41.  ch.  281,  and  the  meaning  of  the  word  had  thus  become 
fixed  by  legislative  usage  also.  The  duties  of  this  company  are 
prescribed  by  the  second  section  of  its  charter,  which  do  not 
include  banking  poAvers.  The  constitution  gives  the  legislature 
the  entire  discretion  of  creating  other  corporations  than  banks, 
by  special  charter.  {Art.  8,  §  1.)  That  discretion  has  been 
exercised  in  this  instance,  and  courts  cannot  review  its  exercise. 
This  was  so  held  at  the  general  term,  when  the  charter  of  tlie 
plaintiffs  was  first  brought  before  its  notice,  on  a  motion  that 
the  court  should  appoint  a  day  on  which  the  annual  accounts  of 
the  company  should  be  submitted  to  the  court,  under  §  20  of  its 
charter. 

The  judgment  must  be  affirmed,  with  costs.  The  receiver, 
on  the  defendant's  giving  security  for  the  costs  of  the  action, 
and  of  an  appeal  to  the  Court  of  Appeals,  may  waive  any  fur- 
ther security  on  said  appeal,  as  there  is  a  large  number  of 
cases  in  which  the  same  questions  are  intended  to  be  raised, 
and  it  is  important  to  have  the  decision  of  the  court  of  last 
resort  as  promptly  as  possible  in  the  case. 

[New  York  General  Term,  May  7,  1855.  Mitchell,  ClerJce  and  Cowles 
Justices.] 


NEW  YORK— MAY,  1855.  ]23 


Mount  vs.  Morton  and  others.  ao'Taji 

43    549 
57    389 

A  testator,  by  his  will,  made  in  March,  1801,  gave  to  his  wife  the  income  of  his  uga  849 
real  and  personal  estate,  during  her  widowhood.  He  then  devised  as  follows  : 
"  I  give  and  bequeath  unto  my  oldest  son,  Jacob,  the  corner  lot,  on  the  corner 
of  Hester  and  Elizabeth  streets  ;  I  also  give  and  bequeath  unto  my  eldest 
daughter,  Barbara,  the  lot  adjoining  the  comer,  facing  Elizabeth  street;  I 
give  and  bequeath  to  my  daughter  Eliza,  the  lot  adjoining  the  above,  facing 
Elizabeth  street;  and  I  also  give  and  bequeath  to  my  youngest  son,  William, 
the  lot  adjoining  the  above."  The  testator  died  in  March,  1801,  and  his  son 
William  in  August  thereafter.  After  the  testator's  death,  each  of  his  four 
children  claimed  and  took  one  lot ;  the  corner  lot  being  called  Jacob's,  the 
next  south,  Barbara's,  the  next,  Eliza's,  and  the  ne.>:t,  William's.  In  1823, 
the  widow  of  the  testator  conveyed  to  Jacob  all  her  title  to  any  lands  of  which 
her  hu!<band  died  seised  or  possessed.     Jacob  then  conveyed  in  fee  to  J,  S. 

■  the  whole  of  lot  No.  1-37,  without  any  thing  to  indicate  that  he  was  selling  an 
undivided  interest  only  in  the  lot.  In  1822,  Barbara,  with  her  husband  and 
the  widow,  mortgaged  lot  No.  136  to  C.  for  $'650 ;  nothing  in  the  mortgage 
indicating  an  intention  to  pass  the  title  to  an  undivided  share  only  of  the  lot. 
This  lot  was  afterwards  sold  on  a  foreclosure  of  the  mortgage,  and  purchased 
by  C.  Before  this  sale,  and  after  the  conveyance  by  the  widow  to  Jacob,  the 
latter  conveyed  to  J.  S.  all  his  "estate,  right,  title  and  interest"  of,  in  and 
to  lot  No.  136,  "  being  an  estate  in  said  Jacob  M.  for  the  life  of  his  mother." 
In  1829,  Eliza  joined  with  her  husband,  A.,  in  conveying  the  whole  of  lot  No, 
135  to  P.  in  fee,  with  full  covenants,  and  without  any  intimation  that  the 
grantors  conveyed,  or  had  only  an  undivided  interest  in  that  lot.  William  died 
an  infant,  in  1801,  and  his  estate  passed  to  Jacob,  Barbara  and  Eliza.  In 
1821,  Barbara  and  Eliza,  with  their  respective  husbands,  joined  with  the 
widow,  and  conveyed  to  Jacob,  in  fee,  two  undivided  third  parts  of  lot  No. 
134,  by  a  deed,  with  full  covenants  as  to  the  estate  granted,  and  describing 
themselves  as  co-heirs  of  William  with  Jacob.  In  1822,  Jacob  conveyed  this 
lot  to  P.  C,  with  full  covenants,  and  without  any  intimation  that  he  conveyed 
only  an  undivided  share.  Barbara  died  in  1835,  leaving  six  children,  one  of 
whom  died  in  1839.  The  plaintiff  was  one  of  her  children.  He  claimed,  that 
the  will  gave  only  a  life  estate  to  each  child,  in  each  lot ;  that  his  mother,  on 
thtf  death  of  William,  was  entitled  to  an  undivided  third  in  each  lot,  in  fee ; 
that  such  right  descended  to  her  six  children,  and  on  the  death  of  one  of  them  ' 
vestea  in  the  live  survivors ;  and  that  the  plaintiff  was  thus  entitled  to  one 
fifteenth  pan  of  lots  136  and  137, 

Held,  1.  That,  assuming  that  the  will  did  not  convey  to  each  child  the  fee  of  the 
lot  devised  to  him  or  her,  but  only  a  life  estate  in  it,  it  was  plain  that  each 
child  must  have  known  that  it  was  the  intention  of  the  testator  to  convey  the 
fee.  That  slight  evidence  ought  to  be  sufficient  in  such  a  case,  that  they  had 
determined  to  carry  out  the  real  intent  of  their  father,  although  not  expressed 
according  to  law.    That  here  was  the  strongest  evidence  that  they  had  so  de- 


124  CASES  IN  THE  SUPEEME  COURT. 

Mount  V,  Morton. 

tcrmined,  and  that  they  caiTied  out  this  honest  determination ;  cAory  act  of 
theirs  sliowing  that  determination,  and  showing  it  in  a  manner  strictly  coin- 
formable  to  law. 

2.  That  if  the  will  did  not  give  a  fee  to  each  child  in  a  separate  lot,  then  each 
child  had  a  life  estate  in  a  separate  lot,  and  they  were  together  tenants  in  com- 
mon of  the  reversion  in  fee,  in  all  the  lots,  which  reversion  descended  to  them 
as  the  heirs  at  law  of  their  father,  as  real  estate  not  disposed  of  by  his  will. 

3.  That  if  the  doctrine  of  estoppel  could  be  applied  so  a.s  to  prevent  parties  dis- 
turbing a  partition,  merely  because  there  had  been  possession  under  i't,  there 
was  much  more  ground  for  applying  it  where,  as  in  this  cate,  each  owner  had, 
by  his  or  her  deed,  claimed  to  own  a  separate  lot  in  entirety,  and  had,  under 
that  claim,  conveyed  the  land  by  deed  or  mortgage,  and  subsequent  fore- 
closure, and  received  from  the  purchasers  the  full  consideration  for  the  entire 
title  to  the  lot,  under  Jhis  representation,  made  by  all  and  by  each,  that  each 
held  a  lot  separate!}^  in  fee,  and  without  any  co-tenant.  That  all  the  children 
of  the  testator,  therefore,  were  estopped  now  from  denying  that  each  held  his 
own  lot  in  fee  and  in  severalty. 

4.  That  if  each  of  the  owners  had  been  together  when  they  conveyed,  and  had 
at  the  same  time  conveyed  to  the  several  purchasers,  there  could  be  no  doubt 
that  they  each  claimed  to  hold  a  lot  in  severalty,  and  conceded  to  the  others 
the  like  right.  Such  conveyance  would  be  conclusive  evidence  of  a.  partition 
previously  agreed  on ;  and  thej',  by  their  acts,  causing  others  to  believe  it  was 
made,  would  be  estopped  from  denying  it.  That  the  conveyances,  made  sepa- 
rately and  at  successive  times,  equally  established  the  fact  of  a  partition  pre- 
viously agreed  on. 

6.  That  it  made  no  difference  that  Barbara  and  Eliza  were  married  women.  A 
married  woman  can  no  more  be  allowed  to  commit  a  fraud  than  a  single  wo- 
man. She  is  competent  to  knew  the  difference  between  fraud  and  honesty, 
and  to  understand  the  obligation  not  to  stand  by  and  allow  another  to  pur- 
chase from  her  on  the  supposition  that  she  has  a  perfect  title,  when  she  knows 
she  has  not. 

I).  That  these  acts  and  deeds  of  the  parlies  were  such  evidence  of  an  actual  par- 
tition between  the  parties  that  a  jury  or  court  ought  to  find  that  there  was  an 
actual  partition  in  fact.  And  that  the  several  deeds  and  the  mortgage  con- 
firmed that  partition,, so  as  to  bind  even  the  married  women;  the  deeds  and 
mortgages  having  been  acknowledged  by,  the  latter  on  a  private  examination, 
so  as  to  pass  their  title. 

ItLs  well  settled,  that  tenants  in  common  may  make  partition  by  parol ;  and  that 
it  is  binding  when  followed  by  possession  according  to  the  partition. 

APPEAL  by  the  plaintiff  from  a  judgment  entered  at  a  spe- 
cial term,  in  favor  of  the  defendants,  with  costs.  The  fol- 
^owitig  opinion,  delivered  at  the  special  term,  states  all  the 
material  facts : 


NEW  YOEK— MAY,  1855.  125 


Mount  V.  Morton. 


"Mitchell,  J.  The  plaintiif  commenced  his  action  to  re- 
cover an  undivided  fifteenth  part  of  lots  Nos.  137,  136,  on 
Ba3'ard's  map  ;  the  first  at  the  southwest  corner  of  Hester  and 
Elizabeth  streets,  and  the  other  on  the  west  side  of  Elizabeth 
street,  both  lots  fi-onting  on  Elizabeth  street.  Jacob  Meyers, 
the  elder,  owned  those  two  lots,  and  the  two  other  lots,  Nos. 
135  and  134,  next  adjoining  on  Elizabeth  street,  in  1776,  and 
at  the  time  of  his  death.  He  made  his  will,  dated  March,  1801, 
and  died  in  that  month ;  on  the  21st  of  May,  1801,  his  will  was 
proved.  He  left  surviving,  his  widow,  Catharine,  w^io  died  in 
1836,  and  four  children — Jacob,  born  in  1791 ;  Barbara,  born 
in  1794  ;  Eliza,  born  in  1796  ;  and  Williafti,  born  about  1798. 
By  his  will  he  gave  to  his  wife  '  the  income  of  his  real  and  per- 
sonal estate,  during  her  widowhood.'  He  gave  the  four  lots 
above  referred  to  in  the  following  terms  :  '  I  give  and  bequeath 
unto  my  oldest  son,  Jacob,  the  corner  lot,  on  the  corner  of 
Hester  and  Elizabeth  streets  ;  I  also  gjve  and  bequeath  unto  my 
eldest  daughter,  Barbara,  the  lot  adjoining  the  corner,  facing 
Elizabeth  street;  I  give  and  bequeath  to  my  daughter,  Eliza, 
the  lot  adjoining  the  above,  facing  Elizabeth  street ;  and  I  also 
give  and  bequeath  to  my  youngest  son,  William,  the  lot  adjoin- 
ing the  above.'  William  died  in  August,  1801,  about  five 
months  after  his  father.  Eliza,  the  daughter,  was  called  as  a 
witness  for  the  plaintiff,  and  on  her  cross-examination  testified 
that  each  one  of  the  four  children,  after  the  father's  death,  took 
one  lot ;  that  the  corner  lot  was  called  Jacob's,  the  next  south, 
Barbara's,  the  next,  Eliza's,  and  the  next,  William's ;  and  that, 
from  the  time  of  the  death  of  her  father,  each  one  of  the  chil- 
dren claimed  each  a  separate  lot ;  Jacob,  the  corner  ;  Barbara, 
the  next ;  Eliza,  (the  witness,)  the  next,  and  William,  the  last. 
In  January,  1823,  the  widow  of  the  testator  conveyed  to  her 
son,  Jacob,  all  her  title  to  any  lands  of  which  her  husband  died 
seised  or  possessed.  In  the  same  month  Jacob,  the  son,  con- 
veyed in  fee  to  James  Si  vails  the  whole  of  lot  No.  137,  for  two 
thousand  five  hundred  dollars,  with  full  covenants  of  seisin  (of 
title  in  fee)  and  for  quiet  enjoyment,  and  further  assurance  and 
warranty,  without  any  thing  to  indicate  that  he  was  selling  an 


1 2 6  CASES  IN .  THE  SUPREME  COURT. 

Mount  V.  Morton. 

undivided  interest  only  in  the  li)t.  In  December,  1822,  Barbara, 
■with  her  husband,  and  the  widow,  mortgaged  lot  No.  136,  a  va- 
cant lot,  to  P.  Clapp  and  wife,  for  six  hundred  and  fift}-  dollars, 
with  the  usual  power  of  sale,  and  a  declaration  that  such  sale 
should  be  a  perpetual  bar,  both  in  law  and  equity,  against  the 
mortgagors,  their  heirs,  (fcc.  Nothing  in  this  mortgage  indi- 
cated an  intention  to  pass  the  title  to  an  undivided  share  only 
of  the  lot.  The  lot  was  afterwards  sold  on  foreclosure,  in  chan- 
cery, on  the  2d  July,  1824,  to  Clapp,  for  nine  hundred  and 
twenty  dollars,  and  by  him  on  the  15th  July,  1824,  conveyed  to 
Sivalls  for  the  same  consideration,  with  full  covenants  of  title. 
Before  this  sale,  and  after  the  conveyance  by  the  widow  to 
Jacob,  in  January,  1823,  Jacob  Meyers,  the  son,  and  his  wife 
conveyed  to  Sivalls  'all  the  estate,  right,  title  and  interest  of 
the  parties  of  the  first  part,  of.  in  and  to  lot  No.  136,  being  an 
estate  in  said  Jacob  Meyers,  for  the  life  of  his  mother,  Catha- 
rine Meyers.'  Eliza  married  Robert  Archbald,  in  October, 
1819,  and  she  joined  with  her  husband,  in  1829,  in  conveying 
her  lot.  No.  135,  to  William  Pinckney  (by  the  deed  conveying 
the  whole  lot  in  fee  with  full  covenants,)  and  Aj-ithout  any  inti- 
mation that  the  grantors  conveyed,  or  had,  only  an  undivided 
interest  in  that  lot.  William  having  died  an  infant  in  1801,  his 
estate  passed  to  his  brother  .Jacob,  and  his  two  sisters,  Barbara 
and  Eliza.  On  the  7th  of  August,  1821,  Barbara  and  her  hus- 
band, John  Mount,  and  Eliza  and  her  husband,  Mr.  Archbald, 
joined  with  the  widow,  and  conveyed  to  Jacob  Meyers,  their 
brother,  in  fee  two  undivided  third  parts  of  lot  No.  134  for  six 
hundi'ed  and  sixty-six  dollars  and  sixty-six  cents ;  the  deed  de- 
scribes Barbara  and  Eliza  as  co-heirs  with  Jacob  the  younger 
of  William  Meyers,  and  it  has  full  covenants  as  to  the  estate 
granted.  Jacob  Meyers,  in  March,  1822.  conveyed  this  last  lot 
in  fee  for  one  thousand  five  hundred  and  fifty  dollars  to  Peter' 
Cook,  with  full  covenants,  and  without  any  intimation  that  he 
conveyed  only  an  undivided  share.  Barbara  married  John 
Mount  in  1812,  and  died  in  1835,  leaving  her  husband  surviv- 
ing, and  six  children  ;  the  husband  died  in  1839  ;  one  of  the 
children,  Albert,  died  after  his  mother,  but  before  his  father 


NEW  YORK— MAY,  1855.  ]27 


Mount  V.  Morton. 


George  W.  Mount  is  one  of  Barbara's  children.  His  claim  is, 
that  the  will  gave  only  a  life  estate  to  each  child  in  each  lot  ; 
that  his  mother,  on  the  death  of  William,  was  entitled  to  an 
undivided  third  in  each  lot  in  fee,  and  that  right  descended  to 
her  six  children,  and  one  of  them  dying,  vested  in  the  five,  and 
that  he  is  entitled  thus  to  one-fifteenth  part  of  lots  137  and 
136.  He,  at  the  argument,  however,  claimed  only  one-fifteenth 
of  two- thirds,  considering  the  conveyance  by  Jacob  as  having 
given  a  perfect  title  to  one-third,  and  leaving  only  the  other 
two-thirds  to  descend  to  heirs. 

Assuming  that  the  will  did  not  convey  to  each  child  the  fee 
of  the  lot  devised  to  him  or  her,  but  only  a  life  estate  in  it,  it  is 
plain  that  each  child  must  have  known  that  it  was  the  intention 
of  the  father  to  convey  to  each  the  fee.  Slight  evidence  ought 
to  be  sufficient,  in  such  a  case,  that  they  had  determined  to  carry 
out  the  real  intent  of  their  father,  although  not  expressed  ac- 
cordinor  to  law.  Here,  there  is  not  slio-ht  but  the  strongest  evi- 
dence  that  they  had  so  determined,  and  that  they  carried  out 
this  honest  determination.  Every  act  of  theirs  shows  that  de- 
termination, and  it  is  shown  in  a  manner  strictly  conformable  to 
law.  If  the  will  did  not  give  a  fee  to  each  child  in  a  separate 
lot,  then  each  child  had  a  life  estate  in  a  separate  lot,  and  they 
were  together  tenants  in  common  of  the  reversion  in  fee,  in  all 
the  lots,  which  reversion  descended  to  them  as  the  heirs  at  law 
of  their  father,  a^  real  estate  not  disposed  of  by  his  will. 

With  us  the  law  is  settled  that  tenants  in  common  may  make 
partition  by  parol,  and  that  it  is  binding  Avhen  followed  by  pos- 
session according  to  the  partition.  Kent,  Ch.  J.,  says,  in  Jac/c- 
wn  V.  Harder,  (4  John.  212,)  "  The  validity  of  the  two  partitions 
is  not  to  be  questioned.  It  did  not  require  releases  to  make  the 
division  valid.  A  parol  division,  carried  into  effect  by  posses- 
sions taken  according  to  it,  will  be  sufficient  to  sever  the  posses- 
sions, as  between  tenants  in  common,  whose  titles  are  distinct, 
and  when  the  only  object  of  the  division  is  to  ascertain  the  sep- 
arate possessions  of  each."  The  court  also  say,  in  Jackson  v. 
Vosbw'ffh,  (9  Joh7i.  276,)  "  There  is  no  doubt  but  that  where 
the  title  is  admitted  to  have  been  in  common,  a  parol  partition 


128  CASES  IN  THE  SUPREME  COURT. 


Mount  V.  Morton. 


followed  up  by  possession  will  be  valid,  and  sufficient  to  sever 
the  possession."  The  counsel  for  the  plaintiff  in  the  last  case 
admitted  the  rule,  but  insisted,  as  the  court  also  held,  that  it 
did  not  apply  there,  because  a  title  in  common  was  not  shown, 
but  the  parties  held  or  claimed  adversely,  and  not  in  common. 
In  Jackson  v.  Livingston,  (7  Wend.  136,)  a  deed  was  executed 
conveying  600  acres  to  be  surveyed  and  taken  off  a  large  tract 
of  15,360  acres;  it  contained  no  description  of  the  600  acres, 
but  a  location  was  subsequently  made  by  the  acts  of  the  parties. 
The  court  said.  {Id.  141,)  "  The  deed  made  the  grantees  tenants 
in  common  with  the  patentees,  and  the  pi'oceedings  locating  the 
right  of  the  grantees  operated  as  a  parol  partition,^'  and  then 
quoted  the  above  tAvo  cases.  The  chancellor  also  said,  in  rela 
tion  tothe-same  deed,  in  Corhin  v.  Jackson,  (14  Wend.  619-625.) 
"  The  parol  partition  between  her  [Madame  D'Autremontj  and 
Le  Fevre  was  also  valid."  Nelson,  Ch.  J.,  says,  in  Ryerss  v. 
Wheeler,  (25  TFent/.  434-6,)  probably  affirmed  in  the  court  of 
errors,  {see  4  Hill,  468,  n.  a,)  "  It  has  been  repeatedly  decided 
in  this  court,  that  a  parol  partition  carried  into  effect  by  posses- 
sion and  occupation,  in  conformity  thereto,  will  be  binding  be- 
tween tenants  in  common  whose  titles  are  distinct,  and  the  only 
object  of  the  division  is  to  ascertain  the  separate  possessions.'' 
The  same  doctrine  was  held  by  Judge  Harris,  in  the  court  of 
appeals,  in  the  case  of  Baker  v.  Lorillard,  (4  Comst.  257-262.) 
and  although  Judge  Bronson  differed  with  him  on  some  points, 
as  to  the  title  of  Pearsall  in  that  case,  he  expressed  no  dissent 
on  this  point,  which  related  to  the  Pell  title.  A  partition  had 
been  made  between  Mrs.  Macomb,  representing  the  Pell  title, 
and  only  having  a  life  estate,  and  her  husband  on  one  side,  and 
Mr.  Campbell,  representing  the  Pearsall  estate,  and  only  having 
a  life  estate,  but  Avith  power  to  partition,  on  the  other  side.. 
Mrs.  Macomb,  after  the  partition,  became  the  OAvner  of  the  re- 
version in  fee  by  the  death  of  her  daughter.  In  1840  she  sold 
ths  premises  allotted  to  her.  Judge  Harris  says,  page  262,  she 
"  thus  affirmed  the  validity  of  the  partition.  HaA'ing  thus  rat- 
ified the  partition  made  by  her  when  ^feme  sole,  and  when  she 
Avas  only  entitled  to  a  life  estate,  I  think  she  is  estopped  from     , 


NEW  YORK— MAY,  1855.  129 


Mount  V.  Moiix)n. 


making  any  claim  to  the  premises.  Such  a  confirmation  is  at 
least  equivalent  to  a  partition  by  parol,  which,  it  has  been  often 
held,  will,  when  nccompanied  by  livery  of  seisin,  bind  tenants  in 
common  holding  under  distinct  titles" — "  as  Mrs.  Macombj  after 
she  became  entitled  tc  the  whole  estate,  has  taken  the  benefit  of 
that  division,  it  must  be  held  conclusive  as  to  her  and  those 
claiming  under  her."  Mrs.  Pell  was  married  when  the  partition 
was  made,  but  single  when  she  conveyed,  in  1840.  {Seep.  259, 60.) 

But  a  married  woman  is  as  competent  to  confirm  an  act  done 
by  her,  if  she  confirm  it  by  a  deed  acknowledged  so  as  to  pass 
real  estate,  as  any  other  person.  It  may  be  said  that  the  sepa- 
rate possession  here  was  consistent  with  the  ownership  of  a  life 
estate  only  in  each  lot,  and  of  the  reversion  in  common  to  all. 
But  that,  with  the  separate  claim  of  sole  title  in  fee  in  each  lot, 
and  the  conveyance  according  to  such  claim,  was  not  consistent 
with  an  ownership  in  common  in  the  reversion. 

If  the  doctrine  of  estoppel  can  be  applied  so  as  to  prevent 
parties  disturbing  a  partition  merely  because  there  has  been 
possession  under  it,  there  is  much  more  ground  for  applying  it 
where,  as  in  this  case,  each  owner  has  by  his  or  her  deed,  claim- 
ed to  own  a  separate  lot  in  entirety,  and  has  under  that  claim 
conveyed  the  land  by  deed  or  mortgage,  and  subsequent  fore- 
closure, and  received  from  the  purchasers  the  full  consideration 
for  the  entire  title  to  the  lot,  under  this  representation  made  by 
all  and  by  each,  that  each  held  a  lot  separately  in  fee,  and  with- 
out any  co-tenant.  Here  Barbara  and  Eliza  joined  with  their 
husbands,  in  1821.  in  conveying  to  their  brother,  Jacob,  two- 
thirds  of  the  lot  that  was  devised  to  William,  and  in  their  deed 
they  describe  themselves  as  co-heirs  o/  William  with  Jacob. 
If,  as  claimed  by  the  plaintiff,  there  was  no  separate  ownership 
in  fee  of  each  lot,  then  this  representation  was  false.  William 
had  only  a  title  to  this  lot  for  life,  and  a  reversion  in  fee  in  one- 
fourth  of  it,  and  Barbara  and  Eliza,  instead  of  being  co-heirs 
with  him  in  that  respect  of  one-fourth  of  the  lot,  and  able  to 
convey  to  him  as  such  co-heirs,  had  only  two-thirds  of  that  one- 
fjurth.  Jacob,  also,  then  continued  the  misleading  when  he  sold 
the  title  to  the  whole  lot,  in  March  of  the  next  year,  to  P.  Cook, 

Vol.  XX.  17 


]30  CASES  IN  THE  SUPREME  COURT. 

Jlount  V.  Morton. 

and  those  conveyances  executed  by  them,  or  the  first  of  them, 
would  naturally  lead  those  who  dealt  with  thera  to  believe  that 
they  owned  each  the  lot  held  by  him  or  her  in  severalty,  and 
had  no  claim  on  any  other.  Then  the  same  belief  would  be  con- 
firmed by  the  mortgage  by  Barbara  and  her  husband,  in  Decem- 
ber, 1822,  of  lot  No.  136,  and  the  sale  on  foreclosure  of  the  same 
lot,  in  July,1824,  in  a  suit  in  which  they  both  were  parties,  and 
by  the  deed  by  Jacob  in  January,  1823,  to  Sivalls  expressly,  of 
all  his  estate  in  the  lot  No.  136,  and  there  describing  it  as  be- 
ing an  estate  for  the  life  of  his  mother.  This  was  a  distinct 
declaration  to  all  who  dealt  with  the  estate,  that  he  had  no  title 
in  that  lot,  except  for  the  life  of  his  mother,  and  that  could  only 
be  (if  the  will  did  not  give  each  a  separate  lot  in  fee)  because 
each  had  consented  to  a  partition,  and  taken  one  lot  as  his  share 
of  the  whole.  Jacob  still  further  confirmed  this  belief,  and  re- 
peated the  representation  of  sole  ownership,  when  he  con- 
veyed, in  1823,  the  whole  of  lot  No.  137  to  Sivalls.  in  fee,  and 
Eliza  and  her  husband  finally  confirmed  them  all,  when  they 
conveyed  in  fee  the  remaining  lot  No.  135,  as  the  sole  owners  of 
it.  These  acts  of  the  several  owners,  partly  concurrent,  as  in 
the  deed  for  William's  lot,  and  partly  separate,  tended  as  much 
to  mislead  each  purchaser,  (unless  the  parties  actually  owned 
in  severalty,  or  are  estopped  from  denying  that  they  so  owned,) 
as  if  the  owners  had  actually  represented  that  they  so  owned. 
Eliza,  the  last  to  convey,  stood  by  and  saw  the  others  convey 
the  other  lots  as  the  absolute  owners  of  it,  and  set  up  no  claim 
to  them  ;  but,  as  if  to  confirm  the  correctness  of  those  sales,  she, 
with  her  husband,  sold  the  whole  of  the  lot  held  by  her,  and 
they  received  the  purchase  money  as  for  the  whole.  They  all, 
therefore,  are  estopped  now  from  denying  that  each  held  his  own 
lot,  in  fee  and  in  severalty.  If  all  of  the  owners  had  been  to- 
gether when  they  conveyed,  and  had  at  the  same  time  conveyed 
to  the  several  purchasers,  there  could  be  no  doubt  that  they 
each  claimed  to  hold  a  lot  in  severalty,  and  conceded  to  the  otl* 
ers  the  like  right.  That  would  be  conclusive  evidence  of  a  par- 
tition previously  agreed  on,  and  they  causing  by  their  acts  others 
to  believe  it  watj  made,  would  be  estopped  from  denying  it.    The 


NETV  YORK—MAY,  1855.  13] 


Mount  V.  Morton. 


conveyances,  made  separately  and  at  successive  times,  equally 
establish  the  fact  of  a  partition  previously  agreed  on,  although 
not  in  so  striking  a  manner.  It  is  true,  here  there  was  a  partition 
for  the  life  of  each,  but  the  acts  of  the  parties  in  conveying  the 
fee  in  each  lot,  show  that  that  was  not  the  only  partition 
that  they  had  agreed  to.  but  that  it  was  a  partition  as  to  the 
whole  title  to  the  lots.  Nor  Avas  this  partition  so  unequal  as  at 
first  it  might  seem.  Jacob  had  the  most  valuable  lot,  but  its 
extra  value  arose  principally,  if  not  entirely  at  fhat  time,  from 
the  building  on  it ;  and  as  he  had  a  life  estate  in  that  lot,  that 
building  would  be  worth  but  little  after  the  expiration  of  that 
estate  of  his,  so  that  what  was  held  in  common,  one-fourth  of 
the  reversion,  in  all  four  of  the  lots,  was  nearly  the  same  as  the 
reversion  in  the  whole  of  any  one  lot.  If  the  owners  were  mis- 
led as  to  the  law,  and  supposed  they  owned  the  fee,  they  ough. 
not  the  less  to  be  estopped,  as  they,  by  their  acts,  led  others  to 
purchase  under  the  same  belief,  and  they  have  each  received 
nearly,  if  not  quite  the  same  value  as  they  would  have  received 
if  they  had  sold  the  reversion  in  one-fourth  of  each  lot. 

It  makes  no  difference,  in  this  view  of  the  case,  that  Barbara 
and  Eliza  were  married  women.  A  married  woman  can  no  more 
be  allowed  to  commit  a  fraud  than  a  single  woptian  ;  her  deed  is 
not  valid,  unless  when  relating  to  real  estate  and  duly  acknowl- 
edged, but  she  is  liable  for  torts  committed  by  her,  and  is  com- 
petent to  know  the  difference  between-  fraud  and  honesty,  and  to 
understand  the  obligation  not  to  stand  by  and  allow  another  to 
purchase  from  her,  who  supposes  she  has  a  perfect  title  when 
she  knows  she  has  not. 

Another  view  of  the  case  is  equally  fatal  to  the  plaintiff's 
claim.  These  acts  and  deeds  of  the  parties  are  such  evidenc( 
of  an  actual  partition  between  the  parties  that  a  jury  or  cour. 
bound  to  draw  conclusions  from  the  evidence  before  it,  oucrht  t( 
find  that  there  was  an  actual  partition  in  fiict,  and  then  the  sev- 
eral deeds  and  the  mortgage  confirm  that  partition,  so  as  to  bine 
even  the  married  Avomen  ;  the  deeds  and  mortjrafces  havinn-  been 
acknowledged  by  the  married  Avomen  on  a  private  examination 
80  as  to  pass  their  title.     Eliza  (the  Avitness,  now  Mrs.  Archi- 


132  OASES  IN  THE  SUPREME  COLTvT. 

Mount  V.  Morton. 

bald)  shows  expressly  that  each  took  possession  of  a  separate 
lot,  and  claimed  it  as  his  or  her  own  in  severalty.  The  lots, 
too,  were  separated,  in  fact,  from  each  other,  the  corner  lot  hav- 
ing a  house  on  it,  and  lot  135  a  house  on  it,  the  last  erected 
after  the  testator's  death. 

If,  as  is  probable,  the  statute  of  limitations  cannot  apply  in 
this  case,  notwithstanding  the  lapse  of  so  many  years,  it  makes 
it  more  important  that  those  principles  which  are  preventive  of 
fraud,  should  b'e  liberally  applied. 

Judgment  should  be  entered  for  the  defendants,  with  costs." 

John  Tmcnshend,  for  the  appellant.  I.  On  the  death  of 
Jacob  Myers,  senior,  his  widow,  by  virtue  of  his  Avill,  took  an 
estate  for  life  in  the  four  lots  Nos.  134,  135,  13G,  137.  {Jarm. 
on  Wills,  ed.  1844,  p.  534.) 

II.  By  the  Avill,  Jacob,  the  son,  took  a  life  estate  in  lot  137 ; 
Barbara  a  life  estate  in  lot  136  ;  Eliza  a  life  estate  in  lot  135, 
and  William  a  life  estate  in  lot  134.  {Edwards  v.  Bishop,  4 
Cams.  61.     Ne%a  v.  Mesick,  3  Seld.  163.) 

III.  The  reversion  in  the  four  lots  descended  to  Jacob,  Bar- 
bara, Eliza  and  William,  and  they  held  the  same  as  tenants  in 
common,  in  fee. 

IV.  From  the  testator's  death  each  of  his  children  claimed 
a  separate  lot ;  each  lot  was  called  after  the  child  to  whom  it 
Avas  devised  by  the  will ;  each  child  took  one  lot.  William  died 
five  months  after  his  father,  in  1821.  Barbara  and  Eliza,  the 
co-heirs  with  Jacob,  of  William,  and  the  testator's  widow,  convey- 
ed to  Jacob  two  undivided  thirds  of  lot  134,  and  in  1822,  Jacob 
conveyed  lot  134  in  fee  to  Peter  Cook.  In  1822  Barbara  mort- 
gaged lot  136,  describing  it  as  the  lot  devised  to  her  by  the  will 
of  Jacob  Myers,  to  Philip  Clapp.  On  25th  January,  1823, 
testator's  widow  conveyed  to  Jacob  all  her  estate  in  said  four  lots 
being  an  estate  for  her  life.  To  this  time  she  collected  the  rents. 
There  was  only  one  house  on  the  lots  at  the  testator's  death ; 
that  was  on  the  corner  lot.  Testator's  widow  lived  on  the  third 
lot  from  corner — lot  135  ;  she  put  a  building  on  the  lot.  There 
was  a  vacant  lot  intervening.     Jacob,  after  the  deed  from  his 


NEW  YORK— MAY,  1855.  1 33 


Mount  V.  Morton. 


mother,  built  on  the  intervening  lot.  On  27th  January,  1823, 
Jacob  conveyed  lot  137  in  fee  to  James  Sivalls,  and  on  the  same 
day  Jacob  conveyed  to  said  Sivalls  lot  136  for  the  life  of  his 
(Jacob's)  mother.  Jacob  died  in  1823.  Jacob's  widow  married 
William  Hicks.  In  1825,  Jacob's  Avidow  and  administratrix 
conveyed  to  Eliza's  husband  the  lot  devised  to  Eliza  (lot  135) 
for  the  life  of  Catharine.  After  this,  and  not  till  this,  Eliza 
took  possession  of  her  lot.  In  1829,  Eliza  and  her  husband 
conveyed  lot  135  to  W.  T.  Pinkney.  The  lot  is  described  as 
the  lot  devised  to  Eliza,  and  Pinkney  paid  oif  the  mortgage  on  it. 
In  1824  the  mortgage  of  Barbara  was  foreclosed,  said  Sivalls 
being  made  a  party  to  the  suit.  On  the  foreclosure  sale  the 
premises  were  sold  to  Clapp,  and  immediately  after  conveyed  by 
him  to  said  Sivalls.  Sivalls  held  possession  of  lots  137  and  136 
from  1823  to  1828.  The  testator's  widow  died  in  1836.  From 
these  facts,  it  is  evident,  (1.)  That  not  one  of  the  testator's  chil- 
dren was  ever  in  possession  as  devisee  of  the  lot  devised  to  him  or 
her.  (2.)  Jacob  had  possession  only  as  vendee  from  Jiis  mother. 
(3.)  Eliza  never  had  possession,  and  her  husband  only  as  ven- 
dee from  the  widow  of  Jacob,  the  son.  (4.)  Barbara  never  had 
possession.  (5.)  That  from  the  death  of  the  testator  each  child 
claimed  the  remainder  in  fee,  expectant,  on  the  death  of  their 
mother,  of  and  in  the  lot  by  the  Avill  devised  to  him  or  her  re- 
spectively. (6.)  That  when  Sivalls  bought  of  Jacob,  he  (Sivalls) 
had  notice  of  the  will  of  Jacob's  father,  and  of  the  estate  each 
child  claimed  under  it.  (7.)  That  when  Barbara  mortgaged  to 
Clapp,  he  knew  of  the  will  of  her  father  and  the  estate  each 
child  claimed  under  it.  (8.)  There  is  no  proof  that  any  child 
knew  of  the  dealings  with  the  property  by  the  other.  (9.)  There 
is  no  proof  that  each  child  obtained  the  value  of  the  whole  lot. 
(10.)  There  is  no  proof  of  any  intent  to  mislead,  nor  that  any 
purchaser  was  actually  misled. 

V.  Presumptions  are  only  indulged   in   where   there  are  no 
other  means  of   ascertaining   the  fact ;   (3    Black.    Com.   371, 

Oxford  ed.  1773.     14  Eng.  L.   (^    Eq.  R.    223.     Black  v. 

Wright,  9  IredelVs  R.  447,)  and  if  a  party  having  conclusive 
evidence  in  his  power  resort  to  weaker  proof,  the  presumption 


134  CASES  IN  THE  SUPREME  COURT. 

Mount  V.  Morton. 

IS  that  the  conclusive  evidence  is  adverse  to  him.  {Roe  v.  Har- 
vey,  4  Burr.  2484-7.  Curlewis  v.  Corjield,  1  Q.  B.  R  814. 
Lobb  V.  Stanley,  5  id.  574.     Bell  v.  Frankls,  4  M  «^  6?.  446.) 

VI.  The  presumption  of  partition  is  inconsistent  with  the 
facts. of  the  claim  of  each  child  of  a  lot  in  fee  from  the  death 
of  the  testator  ;  and  "  if  any  established  circumstance  is  whol- 
ly repugnant  to  the  hypothesis,  the  hypothesis  cannot  be  true.*' 
(3  Stark.  Ev.  483,  505.) 

VII.  To  ascertain  the  testator's  intention,  the  court  must 
look  to  the  language  of  the  w^ill,  "  and  apply  to  it  the  established 
rules  of  law."  {Jackson  v.  Winne,  7  Wend.  52.  Davidson 
V.  Davidson,  1  Hawks,  181.  Chandless  v.  Price,  3  Ves.  102.) 
And  the  testator's  intention  thus  ascertained,  the  court  will 
presume  that  the  children  meant  to  carry  out  that  intention. 
{Jackson  V.  Christman,  4  Wend.  284.) 

VIII.  The  conveyance  by  Barbara  and  Eliza  to  Jacob,  neg- 
atives a  partition.  William  died  five  months  after  his  father, 
aged  three  years.  Eliza  was  then  aged  5,  Barbara  7,  and  Ja- 
cob 10,  and  there  is  no  ground  for  presuming  a  partition  among 
these  infants.  At  the  time  of  the  conveyance  to  Jacob,  in  1821, 
William's  lot  was  treated  as  though  he  took  it  in  fee  under  the 
will,  showing  that  the  children  considered  the  will  gave  each  a 
lot  in  fee  ;  also,  that  no  partition  had  been  made  since  tlie  death 
of  William,  or  his  lot  would  have  been  included  ;  also,  that  no 
partition  Avas  considered  necessary,  and  this  was  further  shown 
by  their  subsequent  acts. 

IX.  The  fact  that  each  deed  purports  to  convey  the  whole 
lot,  and  not  an  undivided  part,  furnishes  no  ground  for  presu- 
ming a  claim  of  a  sole  ownership  in  fee.  {Jackson  v.  Mancius, 
2  Wend.  357.)  Tenants  in  common  have  a  joint  possession. 
{Cole  v.  Irvine,  6  Hill,  634.)  And  in  a  conveyance  by  a  tenant 
in  common  of  an  undivided  shar^,  the  conveyance  is  propeidy 
of  the  whole.  {Edwards  v.  Bishop,  4  Corns.  64.)  Besides 
each  grantee  had  the  whole  lot  for  life.  {Doe  v.  Reed,  5  B.  ij' 
Aid  232.  Livett  v.  Wilson,  3  Bing.  115.)  And  the  convey- 
ances being  by  deeds  operating  under  the  statute  of  uses,  only 
conveyed  such  an  estate  as  the  grantor  actually  had  in  the  prem- 


NEW  YORK— MAY,  1855.  135 

Mount  V.  Morton. 

ises.  {Jackson  v.  Brinckerhoff,  3  John.  Cas.  101.  Sparrmo  v. 
Kingman^  1  Corns.  251.  Collyer  v.  Mason,  2  Brod. ,  6^ 
Bing.  685.) 

X.  The  claim  of  title  is  so  far  accounted  for  by  the  will  as 
to  rebut  the  presumption  of  a  partition.  {Doe  v.  Millett,  12 
Jurist,  1021,  Doe  v.  Powell,  8  Q.  B.  Rep.  576.)  The  presump- 
tion is  that  the  claim  was  founded  on  the  will.  {Benson  v.  Bolles^ 
8  Wend.  175,  181.) 

XI.  There  can  be  no  presumption  of  a  parol  partition.  A 
parol  partition  can  only  be  among  tenants  in  common  holding 
under  distinct  titles,  and  must  be  accompanied  by  livery  of  seisin 
or  followed  by  possession.     {Baker  v.  Lorillard,^  Corns.  257.) 

There  cannot  be  a  presumption  on  a  presumption.  {Ham- 
mond, admUr,  v.  Smith,  17  Verm.  231.  Pennington  v.  ITell, 
6  English,  [Ark.\  213.  Duncan  v.  Little,  2  Bihh's  R.  26.) 
If,  therefore,  from  the  acts  of  the  parties,  it  may  be  presumed 
that  each  claimed  a  sole  estate  in  fee  in  a  single  lot,  the  pre- 
sumption must  there  rest.  That  presumed  fact  cannot  be  made 
the  basis  of  the  further  presumption  that  that  claim  arose  out 
of  a  partition,  and  not  from  the  will ;  especially  as  the  will 
shows  enough  to  warrant  the  presumption  that  the  claim  was 
founded  on  it,  and  the  reasonable  and  legal  presumption  is,  that 
each  child  supposed  the  will  gave  him  or  her  a  lot  in  fee, 
and  that  the  purchasers  from  the  children  were  of  the  like 
opinion. 

XIII.  There  is  no  evidence  nor  ground  for  presuming  that 
in  the  dealings  with  the  property  by  the  testator's  children 
there  was  any  concealment  of  the  will.  The  defect  in  the  claim 
of  title  in  fee  was  therefore  obvious,  and  the  presumption  is, 
the  defect  was  known  to  the  purchaser.  {Piatt  v.  Scott,  6 
Black/.  390.  Lewis  v.  Jones,  4  Barn,  c}*  C.  506.  Lane  v. 
Sheai's,  1  Wend.  433.)  Fraud  is  never  presumed,  {Dardum.e 
V.  Hardwick,  4  Eng.  R.  482,)  and  cannot  be  inferred  by  ar- 
gument     {Austin  V.  Cummiiigs,  10  Verm.  R.  26.) 

XIV.  Estoppels  are  not  favored — they  are  odious — to  be 
used  as  a  shield  sometimes,  never  as  a  sword.     When  an  estop* 


136  CASES  IN  THE  SUPPwEME  COUP.T. 


Mount  V.  Morton. 


pel  in  pais  takes  place,  {Carpenter  v.  Stilicell,  1  Kernan.  CI. 
Lawrence  v.  Brown,  1  i^eld.  401.  Wright  v.  Douglas.  10 
Barb.  97.  Griffith  v.  Bcecher,  Id.  432.  Ryerss  v.  Fartvell, 
9  /'c/.  615.  Warren  v.  Leland,  2  irf.  622.  ^Sinclair  v.  /acAr- 
.so?/,  8  Coiven,  543.  Brannock  v.  Bouldin,  4  Iredell's  Law  R. 
61.  Lewis  V.  Carstaiis,  5  TF.  (^  6".  209.  Wntkins  v.  ^eeA-, 
12  iVe?/;  £ra/n/>.  373.) 

XA*^.  The  estate  each  child  took  under  the  will  Mas  a  ques- 
tion of  law.  Their  assertion  of  estfite  was  only  their  construc- 
tion of  the  will.  It  was  not  a  question  as  to  the  quantity  of 
land,  but  the  quantity  of  estate  in  the  land.  A  party  is  not 
estopped  by  his  assertion  of  a  conclusion  of  law.  {Brewster  v. 
Striker,  2  Corns.  41.  Chantaiique  Bank  v.  White,  2  Scld.  253. 
Jcwett  V.  Miller,  Court  of  Appeals,  Dec.  1852.  Moore  v. 
Hitchcock,  4  Wend.  292.  Hawley  v.  Bennett,  5  Paige,  104. 
Co7/>per  V.  Cowper,  2  P.  TFws.  720.  Mathews  on  Pres.  Ev. 
198.     Selden  v.  Vermilya,  3  Corns.  534.) 

XVI.  All  estoppels  must  be  mutual,  and  they  bind  only  par- 
ties and  privies.  {Sparrow  v.  Kingman,  1  Corns.  247. 
A  grantee  in  a  deed  is  never  estopped  to  deny  his  grantors  ti- 
tle. {Sparrow  y.  Kingman,!  Corns.  247.  Avej'illv.  Wilson, 
4  J3«r6.  180.  /fiZZ  v.  il/iV/,  id.  419.)  Jacob's  deed  to  Sivalls 
did  not  estop  Barbara's  children.  Eliza's  deed  did  not  estop 
Barbara's  children.  The  mortgage  by  Barbara  did  not  estop 
the  claim  of  her  children  on  Jacob's  lot.  {Lawrence  v.  Brown, 
1  Seld.  401.  Jackson  v.  Br  inker  hoff,  3  John.  Cas.  101.)  The 
declaration  in  the  mortgage  by  Barbara  and  her  husband  that 
a  sale  should  be  a  perpetual  bar  did  not  bind  her  children. 
{Dominick  v.  Michael,  4  Sand.  S.  C.  R.  423.  Albany  Fire 
Ins.  Co.  V.  Bay,  4  Corns  9.  Doe  v.  Errington,  6  Bing.  N.  C. 
83.  Jackson  v.  Vandei'heyden,  17  John.  167.  Carpenter  v. 
Schermerhorn,  2  Barb.  Ch.  R.  314.) 

XVII.  The  decree  of  foreclosure  did  not  bar  Barbara  and  her 
heirs.  It  was  pro  confesso.  (1  R.  L.  102,  §  3.)  Barbara 
had  no  next  friend.  {Lewis  v.  Smith  Conrt  of  Appeals^  Aprils 
1854.     Voorhies'  Code,  p.  89,  note.^ 


NEW  YORK— MAY,  1855.  ''  137 


Mount  V.  iMorton. 


Jas.  R.  Whiting,  for  the  respondents.  The  premises  in 
question  are  parts  of  the  lots,  called  in  the  conveyances  No.  137 
and  No.  136,  the  first  being  the  corner  lot,  and  the  other  the  lot 
adjoining  the  corner.  No.  137  bqing  the  same  given  by  the  will  to 
Jacob,  and  No.  136  being  the  same  given  by  the  will  to  Barbara. 

I.  The  fee  of  those  lots  was  vested  by  the  will  in  Jacob  and 
Barbara  severally.  It  is  undoubtedly  true  that  prior  to  the 
revised  statutes  the  word  "  give,"  alone,  did  not  in  a  will  create 
a  fee  ;  but  it  has  always  been  held  that  no  technical  words  are 
necessary  to  carry  a  fee,  and  that  the  intention,  if  it  can  be  le- 
gitimately gathered  from  the  various  provisions  of  the  will,  is 
to  govern.  The  words  "give  my  estate,^'  have  been  held  to 
carry  the  fee.  {Jackson  v.  Bnbcock,  12  John.  389.  McLean 
V.  McDonald,  2  Barb.  iS\  C.  R.  534.)  The  intent  of  this  tes- 
tator is  to  be  gathered  from  all  the  provisions  of  this  will,  and 
looking  at  them,  it  cannot  be  doubted  that  he  intended  to  vest 
the  fee  of  those  lots  in  his  children.  (1.)  He  clearly  intended 
to  dispose  of  all  his  interest  in  the  property,  for  he  gives  an 
estate  for  widowhood  at  least,  and  contingently,  (and  in  point 
of  fact  in  this  case,)  for  life  to  his  widow,  and  then  "  gives"  the 
lots  to  his  children  ;  it  has  never  been  decided,  and  I  trust 
never  will  be,  that  when  an  estate  for  life  is  devised  to  A.  in  a 
lot,  and  then  the  lot  is  "  given"  to  B.,  that  B.  takes  only  a  life 
estate.  Such  a  decision  and  construction  would  be  a  manifest 
absurdity.  (2.)  The  testator  uses  the  word  "give,"  in  the 
clause  as  to  the  farm  ;  in  that  clause,  his  clear  intent  is  to  dis- 
pose of  the  whole  interest,  for  he  directs  the  sale  and  conver- 
sion into  money,  and  its  appropriation  to  the  use  of  his  four 
children.  The  word  "  give,"  here,  must  have  been  used  to  cre- 
ate a  fee,  otherwise  the  sale  of  the  farm  would  produce  nothing, 
and  then  nothing  could  be  got  for  the  use  of  the  children.  The 
Avidow  already  has  an  estate  in  the  farm  during  her  life,  if 
she  do  not  marry,  and  at  all  events  during  her  widowhood,  and 
of  course  any  sale  of  the  farm  must  be  subject  to  this  interest. 
Now  if  the  children  have  only  a  life  estate  in  the  firm,  the 
sale  of  such  an  estate  subject  to  the  widow's  estate,  manifestly 
would  produce  nothing  eft'ective  for  the  children's  use.  .  Where- 
Vol.  XX.  18 


133  CASES  IN  THE  SUPREME  COURT. 

Mount  V.   Morton. 

as  the  sale  of  the  fee,  subject  to  the  -widow's  rights,  woiihl  pro- 
duce a  substantial  sum.  The  word  "  give,"  therefore,  in  this 
chiuse  operates  to  carry  a  fee,  according  to  the  clear  intent  of 
the  testator,  and  having  used  the  Avord  here  for  that  purpose, 
it  shows  what  meaning  he  intended  for  the  same  word — in 
what  sense  he  used  it  in  the  preceding  clause,  and  this  is  a  fair 
and  legitimate  rule  of  construction — a  proper  and  careful  mode 
of  arriving  at  the  intent  and  meaning  of  the  testator  in  his  use  of 
the  word  "  give,"  in  his  will  generally.  (3.)  If  the  word  "  give" 
is  not  held  to  create  a  fee  in  these  lots,  it  follows  that  all  the 
testator  gave,  or  intended  to  give  to  his  chihlren,  was  a  life 
estate,  subject  to  the  life  estate,  or,  at  any  rate,  to  the  freehold 
estate  already  given  to  his  wife ;  such  an  interest  would  be 
valueless,  or  next  to  valueless,  and  it  cannot  be  supposed  that  a 
father  so  intended.  The  rule  of  the  common  law  being,  that  the 
word  "  heirs"  whether  in  a  will  or  deed,  was  requisite  to  create 
a  fee,  it  Avas  held  that  the  Avord  "  give"  alone  did  not  create  that 
estate  ;  but,  the  rule  being  equally  undoubted,  that  in  a  will  the 
intention  is  to  govern,  if  that  intention  can  be  ascertained  by 
construing  all  parts  of  the  Avill  together,  it  has  not  I  appre- 
hend ever  been  doubted,  that  the  Avord  "give"  Avithout  the 
Avord  "heirs,"  Avould  vest  a  fee,  where  from  other  provisions  of 
the  Avill  the  intent  to  create  such  an  estate  wa?  manifest.  In 
the  cases  Avhere  it  has  been'  held  that  the  Avord  ^give"  did  not 
carry  a  fee,  there  have  been  no  other  clauses  or  provisions  in 
the  Avill,  going  to  show  that  the  testator  must  thereby  have  in- 
tended to  vest  a  fee.  It  is  a  fact  undisputed  in  this  case,  that 
the  four  devisees  Avere  the  testator's  only  children. 

11.  If  the  will  did  not  give  a  fee,  there  Avas  an  actual  practi- 
cal partition  of  the  premises  conformably  to  the  provisions  of 
the  Avill,  and  possession  taken  and  claim  of  OAVliership  accord- 
ingly, commencing  immediately  on  the  death  of  the  testator, 
and  continued  uninterruptedly  doAvn  to  the  time  of  the  eom- 
menceuient  of  this  suit,  a  period  of  over  fifty  A-ears.  This  actual 
partition  vested  the  title  to  the  lots  in  the  children  severally. 
(9  John.  270.  4  id.  202.  25  Wend.  434,  6.  7  id.  136.  14  ik 
619.     4  Comst.  257.) 


NEW  YORK— MAY,  1855.  ]39 


Mount  V.  Morton. 


III.  Assuming  that  the  children  took  by  descent,  and  thus 
originally  were  technically  tenants  in  common  of  each  lot,  no 
aid  can  be  derived  to  this  plaintiff  from  this  congidera,tion,  be- 
cause each  took  possession  in  severalty  under  claim  of  title, 
and  so  held  exclusive  of  all  the  others,  and  in  hostility  to  them, 
and  exercised  all  acts  of  ownership  ;  as  using,  improving,  mort- 
gaging, selling,  &c.  and  thus  there  was,  what  was  equivalent  to 
an  actual  ouster  of  the  co-tenants.  There  were  acts  in  abund- 
ance "amounting  to  a  total  denial  of  the  rights  of  the  other 
co-tenants."  {See  2  R.  S.  306,  307,  §  27,  1^^  ed.)  A  convey- 
ance by  one  co-tenant  of  the  whole  estate  is  an  ouster  of  his 
co-tenants,  and  a  good  foundation  for  a  claim  of  adverse  posses- 
sion in  the  grantee.  (13  John.  406.  9  Cowen,  530.  4  Paige. 
178.     15  Wend.  111.) 

IV.  As  to  lot  136,  all  claim  of  this  plaintiff,  (his  claim  being 
solely  as  heir  of  Barbara,)  is  barred  by  Barbara's  mortgages, 
followed  up  by  foreclosure  and  sale,  and  a  master's  deed  in 
1824.  vesting  the  whole  title  in  the  grantee  in  that  deed,  and 
under  that  grantee  we  claim. 

V.  As  to  both  lots,  137  and  136,  to  say  nothing  of  the  ad- 
verse possession  by  Jacob  himself,  of  lot  137,  the  testimony  is 
clear,  that  an  actual  adverse  possession  by  the  grantees  of  Jacob, 
(as  to  137,)  commenced  as  early  as  1823,  and  by  the  grantees 
of  Barbara  (as  to  136,)  commenced  as  early  as  1824,  and  that 
from  those  years  down  to  the  present  time,  both  lots  have  been 
actually  possessed,  and  held  under  claim  of  title  adversely  to 
Barbara  and  her  heirs.  The  plaintiff  as  above  stated,  claims 
only  as  heir  of  Barbara,  and  can  recover  only  on  her  title.  She 
died  in  1835,  and  this  suit  was  commenced  in  1852.  Admitting 
that  the  25  years,  (and  not  the  20  years)  limitation  applies  to 
this  case,  it  expired  as  to  both  lots  certainly,  as  early  as  1849 ; 
and  assuming  that  Barbara  was  under  the  disability  of  cover- 
ture when  the  statute  commenced  running,  the  10  years  allowed 
to  her  representatives,  after  the  termination  of  that  disability 
by  her  death,  in  1835,  expired  in  1845,  and  if  it  is  conceded 
that  the  10  years  did  not  commence  quoad  her  representatives 
til.  the  termination  of  her  husband's  estate  by  the  curtesy,  still 


]40  CASES  IN  THE  SUPREME  COL-Kl. 

Mount  V.  Morton. 

that  period,  (the  10  years)  expired  in  1849,  he  having  died  in 
1839.  There  is  then  no  mode  of  escape  for  this  phiititiff  from 
the  effect  of  the  statute  of  limitation.  It  is  a  conclusive  bar. 
(2  B.  S.  295,  §§  16,  17,  1^/  ed.  Id.  293,  §  5.  Fleming  v. 
Griswold,  8  Hill,  85.     4  Denio,  201.     2  Bnrh.  Ch.  R.  314.) 

VI.  No  benefit  can  arise  to  this  plaintiff  in  consequence  of 
the  life  estate  given  to  the  widow  by  the  will ;  she  conveyed  this 
to  Jacob  in  1823,  and  his  death  in  that  year  terminated  that 
estate,  assuming  it  not  to  have  been  otherwise  extincruished. 
The  conveyance  to  Jacob  extinguished  the  particular  estate  pro 
tanto.  It  was  merged.  By  his  conveyance  to  Sivalls  and 
Cook  it  became  merged  in  those  lots.  (4  Kent's  Com.  100,  *lth 
ed.  103.) 

VII.  This  action  being  the  substitute  for  a  writ  of  right, 
the  plaintiff  is  bound  to  show  an  actual  seisin  or  possession,  or 
pernancy  of  the  rents  and  profits  within  25  years  before  suit 
brought.  This  he  has  failed  to  do  ;  and  indeed  the  contrary  is 
clearly  shown.  But  it  is  proper  to  say  that  this  position  may 
not  be  tenable  in  view  of  2  R.  S.  293,  §  8,  1st  ed. 

VIII.  Assuming  the  truth  of  the  testimony  of  the  plaintiff's 
attorney,  this  claim  is  one  on  which  every  court  will  look  with 
the  greatest  disfiivor,  and  will  enforce  only  from  the  sternest 
necessity. 

By  the  Court,  Clerke  J.  I  am  of  opinion  that  the  judg- 
ment in  this  case  should  be  affirmed,  with  costs,  for  the  reasons 
stated  by  the  judge  at  special  term. 

Judgment  affirmed. 

[New  T  3RK  General  Term,  May  7,  1855.  Mitchell,  Chrke  and  Ccwles 
Jublices  J 


NEW  YORK— MAY,  1855.  \4\ 


HiGGiNs  VS.  Whitson  and  Willetts,  ex'rs.  &c.  and  others. 

On  the  25th  of  July,  1838,  C.  made  a  general  assignment  of  all  his  property  t-» 
W.  and  N.,  in  trust  to  sell  and  convey  so  much  real  estate  as  should  be  sufii- 
cient  to  pay  his  debts,  and  to  apply  the  rents  and  profits  to  his  support  during 
life.  C.  was  infirm  and  in  debt,  and  incapable  of  managing  his  own  afiairs  at 
the  time  of  making  the  assignment.  The  trustees  subsequently  sold  a  portion 
of  the  assigned  property,  called  "  the  Bayside  Farm,"  to  S.  W.  forS15,000, 
with  the  knowledge  and  assent  of  C,  the  assignor,  and  executed  a  deed  to  him, 
in  which  C.  joined.  No  part  of  the  purchase  money  was  paid,  but  the  pur- 
chaser gave  his  bond  for  the  amount,  payable  at  a  future  day.  The  debts  not 
exceeding  $80,000,  C.  consented  to  the  sale  only  on  condition  that  the  trustees 
could  find  an  opportunity  to  invest  the  surplus  remaining  after  paying  the 
debts.  The  trustees  accordingly  loaned  to  H.  $6000  upon  real  estate  at  New- 
burgh,  which  sum  S.  W.  consented  to  advance  towards  the  purchase  money, 
before  he  obtained  possession.  The  property  mortgaged  by  H.  was  subject  lo 
a  prior  mortgage  of  $4000,  and  was  valued  at  $16,000.  C.  knew  of,  and  con- 
sented to,  this  loan  to  H.  Sub.sequently  C.  died,  and  the  trustees  delivered 
over  to  B.  W.  S.,  his  executor,  the  bond  and  mortgage  taken  from  H.  The 
executor  took  no  measures  to  enforce  the  payment  of  the  interest,  or  the  prin- 
cipal, from  H.  The  prior  mortgage  was  foreclosed,  and  after  satisfying  the 
same,  there  was  a  surplus  of  $4956.84,  which  B.  W.  S.  applied  for,  and  ob- 
tained, upon  H.'s  bond  and  mortgage  ;  leaving  due,  for  principal  and  interest, 
to  the  estate  of  C.  $2502.73 ;  for  which  a  decree  in  chancery  was  obtaineil 
against  H.,  which  still  remained  due  and  unpaid.  In  an  action  brought  by 
the  devisees  of  C.  against  the  trustees,  to  recover  the  amount  of  that  deficiency 
from  them ;  Held,  that  the  trustees  had  not  been  guilty  of  any  dereliction  of 
duty,  either  in  selling  the  property,  or  in  loaning  the  money  to  H. ;  «ind 
that  consequentl}'  they  were  not  liable  for  the  Igss  which  had  occurred. 

It  cannot  be  expected  from  trustees  that  thej*  should  act  upon  principles  difierent 
from  those  which  actuate  cautious  and  prudent  men  in  the  transaction  of  their 
own  afiairs.  Otherwise,  the  office  of  a  trustee  would  be  one  of  such  hazardous 
responsibility  that  no  prudent  or  competent  man  would  ever  accept  it.  Per 
Clerke,  J. 

IN  EQUITY.  This  action  was  brought  by  Susan  Higgins 
and  Ann  Higgins,  an  infant,  now  deceased,  by  her  next 
friend,  the  said  Susan  Higgins,  in  the  late  court  of  chancery, 
before  the  chancellor,  against  John  Nostrand,  Thomas  Whitson 
and  Edmund  Willetts,  executors  of  Thomas  Whitson,  deceased, 
and  Benjamin  W.  Strong,  executor  of  the  last  will  and  testa- 
ment of  Charles  P.  Cornwall,  late  of  the  town  of  Flushinsr,  de- 


142 


CASES  IN'  THE  SUPREME  COURT. 


Higsins  V.  Whitson. 


ceased,  to  recover  certain  moneys  alleged  by  the  complainants 
to  have  been  lost  by  the  negligent  or  fraudulent  acts  of  the  said 
John  Nostrand  and  Thomas  Whitson,  deceased,  while  acting  as 
trustees  of  the  said  Charles  P.  Cornwall.  The  bill  was  filed  by 
the  complainants  as  devisees  of  the  said  Charles  P.  Cornwall. 
The  l)ill  of  complaint  was  filed  on  the  11th  day  of  May,  1847. 
All  the  defendants,  except  the  said  Benjamin  W.  Strong,  ap- 
peared, and  put  in  answers  to  the  bill  of  complaint.  The 
answers  were  filed  September  1st,  1847.  The  bill  was  taken 
as  confessed  by  the  said  Benjamin  W.  Strong,  for  want  of  an 
appearance.  The  said  Benjamin  W.  Strong  departed  this  life 
in  the  month  of  September,  1847.  Replications  to  the  answers 
Avere  filed  October  2d,  1847.  The  complainants  filed  their  bill 
of  revivor  and  supplement  in  the  supreme  court  in  equitji-,  Sep- 
tember 23d,  1848,  against  the  said  defendants,  who  had  appeared 
and  answered  the  original  bill,  whereby  this  action  was  revived 
ajjainst  the  said  Daniel  T.  Smith,  as  the  administrator  with  the 
will  annexed,  of  the  said  Charles  P.  Cornwall,  deceased,  and 
who  was  made  a  defendant  therein.  The  defendants,  Nostrand, 
Whitson  and  Willetts,  appeared  and  filed  their  answers  to  the 
bill  of  revivor  and  supplement  on  the  31st  day  of  October,  1848. 
Replications  thereto  were  filed  November  6th,  1848.  Said  bill 
was  taken  as  confessed  against  the  defendant,  Daniel  T.  Smith, 
for  want  of  an  appearjince.  The  cause  was  at  issue  on  the 
pleadings,  November  27,  1848.  Testimony  in  the  cause  was 
taken  by  consent  of  parties,  complainants  and  defendants,  before 
John  P.  Rolfe,  Esq.  and  William  Templeton  -Johnson,  Esq. 
referees  duly  appointed  for  that  purpose.  The  cause  was  heard 
and  tried  in  December,  1852,  before  Philo  T.  Ruggles,  Esq.  as 
sole  referee,  therein  duly  appointed  by  an  order  of  this  court, 
bearing  date  September  Gth,  1852,  upon  the  pleadings  and 
proofs  taken  before  said  referees.  The  said  Philo  T.  Ruggles, 
as  such  referee,  made  his  decision  and  report  herein,  bearing 
date  January  27th,  1853,  in  fiivor  of  the  respondents,  and 
against  the  said  appellants,  John  Nostrand,  Thomas  Whitson 
and  Edmund  Willetts,  executors  as  aforesaid.  That  report  was 
filed  with  the  clerk  of  this  court  on  the  30th  day  of  March,  1853, 


NEW  YORK— MAT,  1855.  143 


Higgins  V.  Whitson. 


and  thereupon  judgment  was  -rendered  in  favor  of  the  complain- 
ants against  the  defendants  in  the  sum  of  $3904.25,  with  inter- 
est from  the  27th  day  of  January.  1853,  besides  their  costs  in 
this  action  to  be  taxed.;  from  which  judgment  Nostrand,  Whit- 
son and  Willetts  duly  appealed  to  the  general  term  of  this  court, 
on  the  15th  day  of  April,  1853. 

H.  B.  Cowles  and  John  A.  Lott,  for  the  appellants. 

G.  T.  Strong  and  M.  S.  Bidwell,  for  the  respondents. 

Clerke,  J.  Charles  P.  Cornwall,  now  deceased,  made  a 
general  aasignment,  dated  25th  of  July,  1838,  to  Thomas  Whit- 
son, deceased,  and  John  Nostrand,  in  trust  to  sell  and  convey  so 
much  real  estate  as  should  be  sufficient  to  pay  his  debts,  and  to 
lease  any  part  of  the  land,  and  apply  the  rents  and  profits  to 
his  support  during  life.  Cornwall  was  infirm,  and  in  debt ;  ana 
being  incapable  from  bad  health  of  attending  efficiently  to  his 
affairs,  he  placed  his  property  under  the  control  of  two  neigh- 
bors, Whitson  and  Nostrand,  who  seem  to  have  been  actuated 
by  kind  and  disinterested  motives  in  accepting  this  trust.  The 
land  which  wag  assigned  consisted  of  several  tracts  in  Queens 
county ;  that  called  "  the  Bayside  Farm,"  was  the  most  valua- 
ble— its  value  considerably  exceeding  the  whole  indebtedness  of 
Cornwall. 

The  trustees  made  eiforts  to  sell  other  portions  of  the  estate; 
but,  notwithstanding  strenuous  and  faithful  exertions,  they  failed 
in  this  attempt ;  and,  at  last,  having  received  an  offer  from 
Samuel  Willetts,  of  the  "city  of  New  York,  a  man  of  wealth  and 
high  credit,  for  the  Ba3'-side  Farm,  for  the  sum'  of  $15,000, 
they  sold  it  to  him  for  this  sum.  This  was  done  with  the  full 
knowledge  and  consent  of  Cornwall.  The  trustees  executed  a 
deed  to  Willetts  about  the  23d  of  November,  1838,  in  which 
Corn,wall  joined.  Willetts  did  not  then  pay  any  part  of  the  pur- 
chase money,  but  gave  to  the  trustees  his  personal  obligation, 
without  security,  to  pay  the  amount  on  the  1st  of  April,  1840, 
or  on  the  1st  of  April,  1839,  in  case  possession  of  the  premises 


144        CASES  IN  THE  SUPREME  COURT. 

Higgins  V.  Whitson. 

should  be  given  before  that  time.  It  having  been  ascertained 
that  the  debts  did  not  exceed  $8000,  and  Cornwall,  before  he 
consented  to  the  sale  to  Willetts,  having  expressly  stated  that 
he  would  not  be  willing  to  sell  the  Bayside  Farm,  unless  the 
trustees  could  find  an  investment  for  the  surplus  after  paying 
the  debts,  they  received  an  application  for  a  loan  of  ^6000,  from 
Elisha  Hall,  of  Newburgh.  Mr.  Cornwall  consented  to  this 
loan  ;  and,  as  Willetts  was  willing  to  advance  this  amount  of 
the  purchase  money  of  the  Bayside  Farm,  l^efore  he  received 
possession,  they  had  the  title  to  Hall's  property  examined,  and 
found  it  to  correspond  with  his  representations.  This  security 
was  estimated  at  $16,000.  There  Avas  one  mortgage  on  it  for 
$4000,  besides  judgment  liens.  The  latter  were  paid  oif  on  the 
day  the  trustees  made  the  loan,  leaving  the  $4000  to  remain  as 
a  prior  incumbrance.  It  does  not  appear  satisfactorily  that 
Cornwall  was  aAvare  of  the  first  mortgage  ;  but  he  expressed  a 
preference  for  a  farm  in  the  country  to  property  in  the  city  of 
New  York,  confiding  in  the  judgment  and  integrity  of  the  trus- 
tees, especially  Mr.  Whitson,  who  took  the  most  active  part  in 
this  business.  About  the  26th  of  November,  1838,  Hall  exe- 
cuted the  bond  and  mortgage  to  the  trustees,  payable  on  the  1st 
of  May,  1840. 

Cornwall  died  on  the  4th  of  February,  1839  ;  and  soon  after 
his  death,  the  trustees  delivered  over  to  Benjamin  W.  Strong, 
his  executor,  the  security  in  question  without  an  assignment  in 
Avriting.  No  interest  money  on  this  security  was  in  arrear  at 
this  time ;  and,  after  it  came  into  the  hands  of  the  executor, 
it  continued  to  be  regularly  paid,  until  the  1st  of  May,  1841, 
some  time  after  the  principal  became  due.  After  this  time  no 
interest  was  paid  on  this  or  the  prior  mortgage,  until  the  fore- 
closure of  the  latter  in  1844.  Strong,  the  executor,  took  no 
measures  to  enforce  the  payment  of  the  interest  or  the  principal. 
After  satisfying  the  first  mortgage,  the  surplus  remaining  was 
$4936.84,  which  Strong  as  executor  applied  for  and  obtained 
upon  the  bond  and  mortgage  of  Hall  to  the  trustees,  leaving  due 
for  principal  and  interest,  the  sum  of  $2502.73,  for  which  a  de- 


NEW  YORK— MAY,  1 855.  ]  4  5 


Higgins  V.  Wliitson. 


free  in  chancery  was  obtained  against  Hall  on  the  21st  October, 
1844,  and  which  is  still  due  and  unpaid. 

This  action  is  broufrht  to  recover  the  deficiency,  from  the  trus- 
tees.  Have  they  been  guilty  of  any  dereliction  of  duty  either 
in  selling  the  property,  or  in  lending  the  money  to  Hall  ?  This 
may  be  considered  rather  an  agency,  than  a  trust  in  the  ordinary 
or  technical  sense.  The  fiduciary  estates,  for  which  the  strin- 
gent rules  of  courts  of  equity  have  been  particularly  intended, 
and  to  which  their  vigilance  has  been  directed,  are  net  those  in 
which  the  grantor  and  cestui  que  trust  are  one  and  the  same 
person,  retaining  and  exercising  control  over  the  property.  In 
the  present  case  the  grantor,  at  all  events,  at  any  time  after  the 
payment  of  the  debts,  could  revoke  the  authority  of  the  trustees, 
and  rescind  the  conveyance,  as  to  its  prospective  effect.  In- 
deed this  instrument  differs,  practically,  very  little,  if  at  all, 
from  a  power  of  attorney,  executed  by  a  person  in  the  place 
where  the  duties  of  the  attorney  are  to  be  performed,  and  where 
the  property  is  situated.  Temporary  convenience  seemed  to  be 
the  motive  of  the  grantor  in  executing  this  instrument;  he  was 
infirm  physically,  necessarily  confined  to  his  hourie  ;  and  two  of 
his  friends,  immediate  neighbours,  kindly  undertook  to  manage 
his  affairs,  for  the  purpose  of  extricating  his  property  from 
debt,  and  relieving  his  mind  from  anxiety  and  trouble.  No 
other  motive  whatever  seems  to  have  influenced  the  minds  of 
any  of  the  parties  to  this  instrument.  If  it  can  be  called  a 
trust  in  the  technical  sense,  there  was  no  cestui  que  trust 
but  Mr.  Cornwall  himself.  He  was,  no  doubt,  a  man  of  intem- 
perate habits ;  and  his  mind  like  that  of  every  person  Avho  is 
addicted  to  such  habits,  was  to  some  extent  impaired  ;  but  not 
in  such  a  degree,  as  to  render  him  incapable  of  comprehending 
his  own  interest,  and  of  deciding,  as  correctly  as  the  generality 
of  men,  upon  the  subjects  in  relation  to  which  he  was  consulted 
by  the  trustees.  His  preference  for  fiirms,  over  city  property, 
differs  from  the  opinion  of  most  Avell  informed  and  shrewd  cap- 
italists ;  but,  it  may,  nevertheless,  be  well  doubted,  whether  a 
farm,  situated  in  a  populous  neighborhood  and  near  several  great 
thoroughfares,  is  not  safer  for  a  permanent  investment  than  any 

Vol.  XX.  I9 


146        CASES  IN  THE  SUPREME  COURT. 

Higgins  V.  Whitson. 

fiity  property.  The  value  of  real  estate  fluctuates  wonderfully 
in  a  city  like  New  Yoi'k,  and  even  in  the  oldest  cities.  A  street 
which  mny  be  this  year  the  mart  of  business,  or  the  most  fash- 
ionable locality  for  private  residences,  may  in  ten  years  fall  into 
disrepute,  and  depreciate  more  than  one-half  in  value.  There 
are  numerous  instances  of  this  in  the  history  of  New  York  ; 
we  have  all  been  witnesses  of  such  within  the  last  twenty  years. 
An  article  in  Household  Words  for  May,  entitled  "  Gone  to  the 
dogs,"  shows,  in  an  interesting  manner,  how  an  entire  street  in 
the  great  British  metropolis  often  falls  into  decay  within  a  few 
years — how  it  "goes  to  the  dogs." 

Some  portion  of  the  evidence  undoubtedly  shows  that  Cornwall 
was  a  man  of  "  low  mental  capacity ;"  but  this  does  not  prove 
that  his  assent  to  the  acts  of  the  trustees  was  not  given  freely 
and  intelligently.  He  died  on  the  4th  of  February,  1839 ; 
Haughworth  lived  with  him  for  four  months  previous  to  and  until 
his  death  ;  and  he  states,  positively,  that  "  Cornwall  could  con- 
verse with  Mr.  Miller  or  any  body  else,  as  well  as  any  person, 
before  his  Inst  illness."  The  investment  was  made  in  Nov.  1838. 
But  even  if  his  mental  feebleness  may  be  deemed  so  great  as 
to  leave  him  at  the  mercy  of  every  designing  person,  did  the 
trustees,  in  fact,  take  advantage  of  his  weakness,  and  for  any 
sinister  purpose  of  their  own  or  of  others,  betray  the  confidence 
which  he  had  reposed  in  them  ?  I  cannot  find  a  particle  of  evi- 
dence to  warrant  any  conclusion  of  this  kind.-  I  cannot  even 
perceive  that  there  was  any  thing  equivocal  in  their  conduct ; 
nor  can  I  find  any  proof  of  such  neglect  or  mismanagement  as 
to  warrant  this  court  in  making  them  responsible  for  any  dete- 
rioration in  the  security,  in  which  a  part  of  the  purchase 
money  of  Bayside  Farm  was  invested.  I  do  not  think  that 
we  could  do  so  without  a  palpable  violation  of  all  equitable 
principles,  even  if  they  were  trustees  in  the  most  technical 
serfse,  and  they  were  acting  for  married  women,  or  infants,  or 
persons  totally  incapable  of  ju<lging  for  themselves.  It  cannot 
be  expected  from  trustees,  that  they  are  to  act  upon  principles 
different  from  those  which  actuate  cautious  and  prudent  men  in 
the  transaction  of  their  own  affairs.     Otherwise,  the   offic*  of 


NEW  YORK— MAY,  1855.  147 


Higgins  V.  Whitson. 


trustee  would  be  one  of  such  hazardous  responsibility  that  no 
prudent  or  competent  man  would  ever  accept  it.  The  mere 
circumstance  that  the  security  given  by  Hale  Avas  a  second 
mortgage,  is  no  proof  of  neglect  or  mismanagement  on  the  part 
of  the  trustees.  The  property  was  valued  at  $16,000  by  per- 
sons whom  they  deemed  competent ;  it  Avas  in  a  rich  and  popu- 
lous neighborhood,  advantageously  situated,  with  a  greater 
probability  of  improvement  than  of  depreciation ;  and  the  first 
mortgage  was  only  $4000.  Cornwall  was  consulted  relative  to 
this  investment,  and  as  he  preferred  country  to  city  security, 
he  readily  gave  his  assent ;  although  it  does  not  appear  express- 
ly, that  he  was  at  the  time  informed  that  there  Avas  a  prior 
mortgage  on  the  farm.  But  we  are  not  to  presume  that  this 
Avas  designedly  concealed  from  him,  or  that  it  Avas  concealed  at 
all.  We  haA'e  as  much  reason  to  infer  from  the  attendant  cir- 
cumstances, and  from  the  general  conduct  of  the  trustees  in  re- 
lation to  this  matter,  that  it  was  communicated  to  him,  as  that 
it  Avas  suppressed.  When  we  further  consider  that  the  defi- 
ciency for  Avhich  this  action  is  brought,  was  caused  by  the  want 
of  diligence  on  the  part  of  Mr.  Strong,  the  executor  of  Cornwall, 
to  Avhom  the  Avhole  management  of  the  affair  Avas  transferred 
by  the  trustees,  and  AA'ho  assumed  the  control  over  it,  we  can  no 
longer  entertain  any  doubt  on  the  subject. 

The  report  of  the  referee  should  be  set  aside,  and  the  judg- 
ment reversed,  with  costs. 

CowLKS,  J.  I  concur  in  the  opinion  that  the  judgment 
should  be  reversed.  Upon  the  facts  the  defendants  should  have 
had  judgment ;  and  as  all  the  facts  in  the  case  are  evidently 
before  the  court,  there  can  be  no  good  reason,  as  far  as  I  can 
perceive,  for  sending  the  parties  again  before  the  referee. 

The  clerk  will   enter  an  order  reversing  the  judgment,  with 

30StS. 

Mitchell,  P.  J.   concurred. 

Judgment  reversed. 

[New  Yokr  General  Term,  May  7,  1855.  Mitchell,  Gierke  and  Cowles, 
Justices.] 


148  OASES  IN  THE  SUPREME  COURT. 


*L4i3  Ot.cott  vs.  Hobinson. 

17a  281 
2U  150 
89a  399(      p|jg  statute  is  imperative  in  requiring  the  time  and  place  of  holding  any  sale  of 

real  estate  on  execution  to  be  publicly  advertist'd  six  weeks  previously,  in  two 

ways;  first  by  posting   the  notice  in  thi-ee  public  places  in  the  town,  and 

second,  by  printing  the  same  once  in  each  week,  in  a  newspaper  of  the  county. 

Both  methods  must  commence  six  weeks  previous  to  the  day  of  sale.     A  les.<5 

time,  in  respect  to  either  branch,  is  insufficient,  and  renders  the  sale  invalid. 

Where  a  notice  of  sale  was  posted  forty-three  days  previous  to  the  day  of  sale, 
making  si.x  full  weeks,  but  the  notice  published  in  the  newspapers,  although 
it  received  six  separate  insertions,  once  in  each  week  for  six  successive  weeks, 
was  first  published  only  thirty-nine  dayn previous  to  the  day  of  sale;  it  was 
held  that  the  publication  was  insufficient ;  and  that  the  sheriff's  deed,  executed 
upon  the  sale,  gave  no  title  to  the  purchaser. 

Held  also,  that  the  circulation  of  the  notice  of  sale  in  slips  headed  "  Plattsburgh 
Republican,  Extra,"  would  not  aid  the  purchaser ;  that  not  being  such  a 
printing  in  a  newspaper  as  was  conti'mplated  by  the  statute. 

ri^HIS  was  an  action  in  the  nature  of  ejectment  to  recover  the 
X  possession  of  the  north  half  of  Valcour  Island,  situate  in 
Lake  Champlain,  in  the  county  of  Clinton.  The  cause  was 
tried  in  July,  1854,  and  a  verdict  taken  for  the  plaintiffs,  subject 
to  the  opinion  of  the  court  at  general  term. 

The  plaintiff  claimed  title  by  virtue  of  a  deed  received  from 
the  sheriff  of  Clinton  county,  on  a  sale  of  the  premises  under  an 
execution  issued  upon  a  judgment  rendered  against  Peter  Corn- 
stock,  docketed  May  9.  1840.  The  defendant  claimed  through 
the  same  source,  by  virtue  of  a  sale  upon  a  junior  judgment.  The 
plaintiff's  title  was  contested,  solely,  on  the  ground  that  the  re- 
quirements of  the  statute,  relative  to  sales  of  real  estate  under 
execution,  had  not  been  fully  complied  with.  The  proof  showed 
that  the  notices  of  sale  were  properly  posted  on  Tuesday,  the 
2r)th  day  of  March,  1850,  for  Wednesday,  May  8th,  1850,  but 
that  no  copy  of  said  notice  was  published  in  a  newspaper  until 
Saturday,  March  30,  which  was  continued  regularly  for  the  next 
live  succeeding  Saturdays,  ending  May  4.  Also  that  a  few  slips, 
containing  a  copy  of  the  notice  of  sale,  headed  "  Plattsburgh 
Republican,  Extra,"  were  printed  and  circulated,  on  the  2Gtb 
day  of  March  and  on  the  8th  of  May. 


ESSEX— JULY,  1855.  149 


Olcott  V.  Robinson. 


G.  Stow,  for  the  plaintiff. 

Wm.  Sweatland,  for  the  defendant. 

By  the  Court  Jamks,  J.  The  validity  of  the  judgment  un 
der  which  the  plaintiff  makes  title  to  the  premises  in  question, 
the  regularity  of  the  execution  issued  thereon,  and  all  proceed- 
ings under  it,  except  the  publication  of  the  notice  of  sale,  are  not 
disputed  ;  so  that  the  only  question  presented  for  consideration 
is,  whether  in  the  publication  of  the  notice  of  sale  under  the  ex- 
ecution, the  requirements  of  the  statute  have  been  sufficiently 
complied  with  to  vest  in  the  plaintiff  title  to  the  premises  in 
dispute.  The  statute  is  in  substance  as  follows :  "  The  time 
and  place  of  holding  any  sale  of  real  estate  pursuant  to  any  ex- 
ecution, shall  be  publicly  advertised,  previously,  for  six  weeks 
successively,  as  follows :  First.  A  written  or  printed  notice 
thereof  shall  be  fastened  up  in  three  public  places  in  the  town, 
&c.  Second.*  A  copy  of  such  notice  shall  be  printed  once  in 
each  Aveek  in  a  newspaper  of  such  county,  &c.  (2  R.  S.  368, 
§  34.)  In  the  present  case  notice  was  posted,  &c.  forty-three 
days  previous  to  the  day  of  sale,  making  six  full  weeks ;  but 
the  notice  published  in  the  newspaper,  although  it  received  six 
separate  insertions,  once  in  each  week  for  six  successive  weeks, 
was  first  published  only  thirty-nine  days  previous  to  the  day 
of  sale.  This  publication  the  defendant  insists  is  insufficient, 
and  a  defect,  fatal  to  the  validity  of  the  deed  taken  under  it ; 
while  the  plaintiff  insists  that  all  the  requirements  of  the  statute 
were  fully  and  literally  complied  with,  and  the  title  acquired  by 
virtue  of  such  sale  complete  in  the  purchaser. 

1  am  nowever  compelled  to  differ  with  the  plaintiff  in  his 
view  of  the  case.  The  statute  is  imperative.  It  requires  the 
time  and  place  6f  holding  any  sale  of  real  estate  on  execution  to 
be  publicly  advertised  six  weeks  previously,  in  two  ways  ;  both 
should  commence  six  weeks  previous  to  the  day  of  sale  ;  a  less 
tune  is  expressly  prohibited,  and  the  prohibition  is  as  much  ap- 
plicable to  one  branch  of  advertising  as  the  other.  If  both  are 
not  complied  with,  the  sale  must  of  necessity  be  invalid      It  is 


1 50  OASES  IN  THE  SUPREME  COURT. 

Olcott  V.  Robinson. 

an  ol<l  maxim  of  the  law,  that  "  every  statute  authority  to  divest 
the  title  of  one  without  his  consent  and  transfer  it  to  another, 
must  be  strictly  pursued,  or  the  title  will  not  pass."  That  not 
having  been  done  in  this  case,  the  sheriff's  deed  gave  no  title  to 
the  plaintiff  in  the  premises  in  dispute. 

It  is  insisted  that  such  a  construction  will  make  seven  inser- 
tions of  the  notice  in  the  newspaper  necessary  to  the  validity  of 
a  sale  under  execution,  by  reason  of  the  rule  of  computation 
which  excludes  the  first  day.  But  that  would  not  necessarily 
follow.  The  first  publication  is  the  beginning  of  the  act,  and 
although  the  day  on  which  the  act  was  done  might  be  excluded 
in  the  computation  of  the  time,  if  the  notice  is  published  six 
times,  once  in  each  week,  reckoning  the  first  publication  as  one, 
that  would  be  sufficient,  without  a  seventh  publication  on  the 
day  of  sale.  This  construction  harmonizes  all  the  provisions  of 
section  34  ;  the  property  is  advertised  previous  to  the  sale,  by 
both  posting  and  publication,  six  full  weeks  ;  and  also  by  a  pub- 
lication once  in  each  of  the  six  weeks  ;  thus  fulfilling  both  the 
letter  and  spirit  of  the  statute. 

If  however,  from  the  language  of  the  statute,  a  seventh  pub- 
lication were  necessary  to  give  validity  to  a  sheriff's  sale,  the 
statute  must  be  obeyed  without  regard  to  its  effect  upon  partic- 
ular cases. 

The  circulation  of  the  notice  of  sale  in  the  slips  headed 
"  Plattsburgh  Republican,  Extra,"  will  not  aid  the  plaintiff.  It 
was  not  such  a  printing  in  a  newspaper  as  was  contemplated  by 
the  statute. 

There  must  be  judgment  for  the  defendant. 

[Essex  Qenerj>l  Term,  July  2,  1855.  C.  L.  Allen,  Bockes  and  Jamea^ 
Justices.) 


ESSEX— JULY,  1855.  151 


Ingraham  vs.  Gilbert. 

Section  277  of  the  code  does  not  require  a  referee  formally  to  report  on  all  tin 
issues  formed  by  the  pleadings.  If  there  are  issues  upon  which  no  evidence 
is  given,  he  need  not  notice  them  in  his  report ;  it  seems. 

An  objection  to  the  report,  on  that  ground,  is  not  available  on  appeal  from  the 
judgment  entered  upon  tlie  report.  If  a  party  is  dissatisfied  with  the  report 
of  a  referee,  his  remedy  is  by  special  motion  to  set  aside  or  correct  the  same. 

If"  a  person,  without  compulsion  of  law,  or  legal  obligation,  pays  the  debt  of  an- 
other, without  a  previous  request,  the  debtor  is  not  liable  for  the  amount 

A  pcciniiaiy  benefit,  voluntarily  conferred  by  the  plaintiff  and  adopted  by  the 
defendant,  is  not  such  a  consideration  as  will  support  an  action  of  assumpsit, 
on  a  subsequent  implied  promise. 

rpiIIS  action  was  brought  to  recover  money  paid  by  the  plain- 


T 


conipUiint  alleged  that  the  defendant  was  indebted  to  one  Baker 
in  the  sum  of  $195 ;  that  the  defendant  requested  the  plaintiff" 
to  adjust  the  same,  and  for  that  purpose  the  plaintiff  sold  to  said 
Baker  one  yoke  of  oxen  at  $Q0,  and  paid  him  $134.85  in  money. 
That  since  said  payment  the  plaintiff  had  repeatedly  requested 
the  defendant  to  repay  him  the  same,  l)ut  the  defendant  had 
wholly  neglected  and  refused  so  to  do  ;  whereby,  &c. 

The  answer  denied  the  complaint,  and  denied  that  Gilbert 
made  any  request  to  the  plaintiff,  either  to  deliver  the  cattle  or 
to  pay  his  debt. 

The  cause  was  referred,  and  after  hearing,  the  referee  report- 
ed in  favor  of  the  plaintiff,  upon  which  report  judgment  was 
entered.  In  his  finding  of  facts,  the  referee  made  no  allu- 
sion to  a  request  by  the  defendant,  but  reported  that  "  in  1844 
the  defendant  was  indebted  to  Baker  in  the  sum  of  $194.85 ; 
that  the  plaintiff  paid  and  satisfied  such  debt;  that  afterward 
the  defendant  sanctioned  and  adopted  such  payment,  and  prom- 
ised to  repay  the  same  to  the  plaintiff." 

C.  S.  Grinnell,  for  the  plaintiff. 

Wm.   Wait,  for  the  defendant. 


162 


CASES  IN  THE  St  PREME  COURT. 


Insraham  v.  Gilbert. 


By  the  Courts  James,  J.  The  defendant's  first  ground  of 
error  is,  that  the  referee  neglected  to  report  upon  all  the  issues 
made  by  the  pleadings.  The  code,  §  272,  requires  the  referee 
to  state  the  facts  found,  and  his  conclusions  of  law  thereon,  sep- 
arately. This  is  in  the  nature  of  a  special  vQrdict,  and  enables 
the  court,  on  appeal,  to  declare  readily,  whether  or  not  the  ref- 
eree erred  in  the  application  of  the  law  to  the  facts.  In  this 
action  the  plaintiff  averred  that  he  paid  the  debt  to  Baker  at 
the  defendant's  request,  and  as  the  averment  was  speciall}''  de- 
nied by  the  answer,  the  defendant  insists  it  became  a  material 
issue  upon  which  the  referee  should  have  directly  reported. 
But  I  do  not  understand  that  section  272  requires  the  referee 
formally  to  report  on  all  the  issues  formed  by  the  pleadings. 
If  there  are  issues  upon  which  no  evidence  is  given,  he  need 
not  notice  them  in  his  report.  However  that  may  be,  the  ob- 
jection is  not  available  on  this  motion.  If  dissatisfied  with  the 
report,  the  defendant's  remedy  was  b}'  special  motion  to  set 
aside  or  correct.  The  allegation  of  request  Avas  only  important 
as  a  rule  of  pleading.  In  declaring  upon  an  indebtedness  for 
past  service,  it  is  necessary  that  the  service  be  averred  to  have 
been  performed  upon  request ;  otherwise,  from  all  that  would 
jippear  upon  the  record,  it  may  have  been  a  voluntary  courtesy. 
{Conistock  v.  Smifh,  7  Jo/ui.  87.  6  Wend.  647.)  And  such 
averment,  like  other  issues,  may  be  sustained  by  evidejice  from 
which  a  request  might  be  implied.  On  the  trial  the  plaintiff 
did  not  seek  to  prove  any  previous  express  request,  and  aside 
from  the  beneficial  nature  of  the  transaction,  there  was  nothing 
from  Avhich  a  request  could  be  implied.  From  these  facts,  and 
from  the  further  fact  that  this  issue  was  urged  upon  the  referee 
Rt  the  hearing,  and  his  omission  to  find  a  previous  request,  this 
case  must  be  considered  .is  if  none  such  was  made,  and  that  the 
payment  was  a  voluntary  act.  If  one  person,  without  compul- 
sion of  law,  or  legal  obligation,  pay  the  debt  of  another,  without 
a  previous  request,  the  debtor  is  not  liable  for  the  amount 
thus  paid.  {Bqrlholomeio  v.  Jackson,  20  Jo/m.  28.  Diinba; 
y.  Williams,  10  id  259.) 

But  the  plaintiff  insists  that  the  defendant  has  made  himself 


ESSEX— JULY,  1855.  •  153 


Insrahara  v.  Gilbert. 


liable  by  his  subsequent  sanction  and  adoption  of  the  payment 
and  promise  to  repay,  as  found  by  the  referee.  This  presents 
two  questions :  1st.  Was  the  finding  of  the  referee  Avarranted 
by  the  evidence  ?  and  2d.  Was  there  a  legal  consideration  to 
uphold  and  support  such  promise  ? 

In  the  case  itself,  there  is  no  proof  to  sustain  the  finding  of 
the  referee.  All  the  evidence  upon  this  branch  of  the  case  was 
from  Levi  and  Daniel  C.  Ingraham  and  D.  W.  Johnson.  The  first 
named  witness  testified  that  in  June.  1849,  in  a  conversation 
Avith  the  defendant  about  his  ability  to  construct  a  fence,  ha 
said  he  owed  the  plaintiff  near  $300  on  the  Barker  matter. 
The  third  witness  was  present  and  heard  the  same  conversation. 
The  second  witness  testified  that  the  defendant,  in  3848,  in  enu- 
merating his  debts  to  him,  mentioned  one  due  to  the  plain- 
tiff for  money  paid  to  Baker ;  that  the  defendant  once  proposed 
to  this  witness  that  the  plaintifi"  and  another  per.son  should 
buy  a  store  of  him,  and  that  it  would  nearly  pay  the  Baker 
debt.  The  plaintiff"  was  not  present  at  either  conversation. 
The  most  that  could  be  made  from  this  evidence  wal  an  implied 
adoption  of  the  pjiyment  and  promise  to  pay.  (^Sands  v.  Gels- 
ion,  15  John.  511.) 

To  avoid  the  question  of  consideration,  the  plaintiflf  insists 
that  an  implied  profcise  is  equivalent  to  a  previous  request. 
There  is  no  case  which  quite  sustains  that  position,  although 
Doty  V.  Wilson,  (14  Jolui..  378,)  comes  very  near  to  it.  There 
the  plaintiff",  a  sheriff",  having  arrested  the  defendant  on  actf.  sa  , 
suffered  him  to  escape,  and  was  compelled  to  pay  the  judgment ; 
the  defendant  afterwards  promised  to  pay  the  amount ;  and  it 
was  held  the  sheriff"  could  recover  on  the  promise.  Thompson, 
chief  justice,  said:  "When  a  man  pays  a  sum  of  money  for 
me  without  my  request,  and  I  aflenvards  a^free  lo  the  pay- 
muit.  this  is  equivalent  to  a  previous  request  to  do  so.  The 
benefit  to  the  defendant,  connected  with  his  express  promise  to 
pay^  must  be  deemed  equivalent  to  a  previous  request.  It  was 
an  adoption  of  the  payment  as  made  for  the  'benefit  of  the 
defendant,  and  a  subsequent  ratification  was  equivalent  to  an 
original  command."     The  reasons  why  a  debtor  is  not  liable  to 

Vol.  XX.  20 


154  CASES  IN  THE  SLTREME  COURT. 

Ingraham  v.  Gilbert. 

repay  to  another  a  debt  which  that  other  has  voluntarily  paid 
entirely  fail,  when  such  debtor  afterward  agrees  to  the  pay- 
ment and  promises  to  remunerate  him  for  what  he  has  done. 
It  would  seem  like  the  subsequent  ratification  of  the  act  of  a 
voluntary  agent,  done  without  authority.  If  the  promise  in 
this  case  had  been  an  express  promise,  and  the  finding  of  the 
referee  •'  that  the  defendant  had  sanctioned  and  adopted  the 
act,"  justified  by  the  evidence,  it  would  come  within  the  reason 
and  spirit  of  the  decision  in  Dot//  v.  Wilson.  But  as  I  have 
already  shown,  the  proof  falls  far  short  of  sustaining  the  report, 
or  of  showing  an  express  promise.  The  plaintiff's  right  to 
recover,  therefore,  rests  upon  the  defendant's  implied  promise 
to  repay. 

Was  there  any  consideration  to  support  such  promise?  The 
language  of  the  note  to  Sd  Bos.  c5'  Pul.  249,  was  adopted  in 
this  state  as  early  as  1816,  in  Smith  v.  Ware,  (13  John.  257,) 
which  holds  "  that  an  express  projnise  can  only  revive  a  prece- 
dent good  consideration  which  might  have  been  enforced  at  law, 
through  the''  medium  of  an  implied  promise,  had  it  not  been 
suspended  by  some  positive  rule  of  law,  but  can  give  no  origi- 
nal right  of  action,  if  the  obligation  on  which  it  is  founded 
never  could  have  been  enforced  at  law,  though  not  barred  by 
any  legal  maxim  or  statutory  provision."  4ln  this  state  "  a  moral 
ol)ligation  to  pay  money,  or  perform  a  duty,  is  a  good  consider- 
ation for  a  promise  to  do  so,  where  there  was  originally  an  ob- 
ligation to  pay  the  money,  or  do  the  duty,  enforceable  at  law  but 
for  the  interference  of  some  rule  of  law.  Thus  a  promise  to 
pay  a  debt  contracted  during  infancy,  or  barrgd  by  the  statute 
of  limitations,  or  bankruptcy,  is  good  without  other  considera- 
tion than  the  legal  obligation.  But  the  morality  of  the  prom- 
ise, however  certain,  or  the  duty  nowever  urgent,  does  not  of 
itself  suffice  for  a  consideration."  (1  Parsons^  Contracts,  360. 
Ehle  V.  Judson,  24  Wend.  97.  Geer  v.  Archer,  2  Barb.  S.  C. 
Rep.  420.  Chilcott  v.  Trimble,  13  id.  508.)  The  English 
cases  are  still  "more  explicit.  The  I'ule  in  Eastwood  v.  Ken- 
yon,  (11  Ad.  tj*  Ellis,  438,)  is  decisive  of  this  case.  It  is 
there  held  that  "a  pecuniary  benefit  voluntarily  conferred  by 


ESSEX— JULY,  1855.        '  J  55 


Eastern  Plank  Road  Co.  v.  Vaughan. 

the  plaintiflf  and  adopted  by  the  defendant,  is  not  such  a  con- 
sideration as  will  support  an  action  of  assumpsit  on  a  subse- 
quent express  promise."  The  plaintiff's  act  was  of  that  character, 
and  hence  there  was  no  consideration  to  support  the  promise 
upon  which  he  relies.  Unless,  therefore,  the  plaintiff  can  prove 
an  express  or  an  implied  reqnest  to  pay  the  debt,  he  seems 
to  be  remediless.  "  The  law  as  it  now  stands,  amounts  to  little 
more  than  permission  to  a  party  to  waive  certain  positive  rules 
of  law,  which  would  protect  him  from  a  plaintiff  claiming  a 
just  debt." 

Judgment  reversed  and  new  trial  ordered ;  costs  to  abide 
the  event. 

[Essex  Gkneral  Term,  July  2, 1855.     Hand,  Cody,  C.  L.  Allen  and  JameSf 
Justices.] 


The  Eastern  Plank  Road  Company  vs.   Vaughan. 

In  an  action  by  a  plank  road  comi)any,  the  plaintiffs,  to  establish  their  incorpora- 
tion, proved  that  notice  of  opening  the  books  of  subscription  as  required  by  the 
laws  of  1847  was  properly  given;  that  stock  to  the  amount  of  over  S500  |>er 
mile  was  subscribed  to  the  original  articles  of  association  ;  that  directors  were 
elected,  on  due  notice ;  that  articles  of  association  were  sukscribed,  as  required 
by  the  act,  and  indorseil  by  an  affidavit  of  three  directors,  and  duly  filed  in  the 
office  of  the  secretary  of  state;  also  that  the  plaintiffs  had,  under  their  organ- 
ization constnicted  the  road  and  put  the  same  in  operation.  Held  that  the  plain- 
tiffs had  proved  themselves  to  be  a  corporation. 

The  defendant,  among  othere,  signed  a  paper  by  which  the  subscribers,  for  value 
received,  promised  to  pay  B.  and  W.  SlOO  for  each  .share  by  tlicm  subscribed 
for  the  purpo.se  of  building  a  certain  plank  road.  And  B.  and  W.  were  author- 
ized to  transfer  the  subscriptions  to  a  company  thereafter  to  be  formed  for  the 
purpose  of  building  said  road.  The  defendant  took  one  share.  Subsequently 
articles  of  association  were  adopted  and  signed  by  subscribers  for  stock,  to  an 
amount  exceeding  the  sum  required  by  statute,  without  including  the  defend- 
ant; and  the  organization  was  completed  by  filing  the  articles  of  association, 
and  the  subscription  signed  by  the  defendant  and  others  was  transferred  to  the 
company  by  B.  &  W.  and  the  defendant's  name  was  subscribed  to  the  books 
oy  them. 


156  CASES  IN  THE  SUPREME,  COURT. 

Eastern  Plank  Road  Co.  v.  Vaughan. 

Held  1.  That  the  subscription  of  the  defendant  was  legal,  and  binding  upon 
him  ;  as  much  so  as  if  he  had  subscribed  the  articles  of  association  with  his 
own  hand. 

2.  That  the  subscription  was  legally  transferred  to  the  plaintiffs ;  and  that 
such  transfer  vested  in  thcra  the  title  to  such  subscription,  and  the  authority 
to  collect  and  receive  the  moneys  due  or  to  become  due  under  it. 

3.  That  the  promise  of  the  defendant  purporting  to  have  been  made  for  value  re- 
ceived, this  was  prima  facie  sufficient  evidence  ol'  a  consideration  to  uphold 
the  subscription. 

4.  That  the  agreement  might  be  regarded  as  an  offer  or  proposition  on  the 
part  of  the  subscribers  that,  provided  a  company  should  be  organized  to  con- 
struct the  plank  road  mentioned,  each  would  take  the  number  of  shares  of 
capital  stock,  therein,  by  them  subscribed,  and  the  organization  of  such  corpo- 
ration as  an  acceptance  of  that  offer  or  pro{)osition.  And  that  such  pa'omise 
could  be  enforced,  because  it  induced  others  to  enter  into  engagements,  assume 
liabilities,  and  incur  expense,  on  tlie  faith  of  such  proposition. 

By  the  articles  of  association  of  a  plank  road  companj',  executed  in  Sept.  1850, 
the  subscribers  promised  to  pay  in  their  subscriptions  as  called  for  by  the  di- 
rectors, not  exceeding  25  jjer  cent  at  any  one  time.  On  the  25th  of  March, 
1851,  a  call  of  13  percent  was  made,  payable  April  16th,  and  calls  of  15  per  cent 
each,  payable  May  1st,  May  15th,  and  June  1st;  and  on  the  13th  of  June  a 
call  for  the  balance,  42  jier  cent,  payable  on  the  1st  of  July,  was  made  ;  notico 
of  which  calls  was  immediately  given  to  the  defendant. 

Held  1.  That  calls  in  sums  not  exceeding  25  per  cent  payable  at  any  one  time, 
were  necessary,  by  the  terms  of  the  defendant's  agreement,  before  any  liability 
thereon  accrued. 

2.  That  the  39th  section  of  the  plank  road  law  of  1847  had  no  application  to  a 
common  law  action,  brought  to  recover  the  amount  of  the  calls;  and  that  30 
days  previous  notice  of  the  calls  was  not  requisite  to  the  defendant's  liability 
in  such  action.  That  notice  is  necessary  only  where  the  cumulative  remedy 
of  forfeiture  of  the  stock  is  sought. 

8.  That  the  call  for  the  first  lour  installments  was  a  compliance,  on  the  plaintiiF's 
part,  with  the  defendant's  agreement  to  pay  ;  but  that  the  call  for  42  per  cent, 
being  for  a  sum  greater  than  he  had  contracted  to  pay  at  any  one  time,  im- 
posed no  liability  on  him. 

4.  That  the  defendant  had  a  right  to  waive  the  call  for  installments  in  sums  noi 
exceeding  25  {)er  cent ;  and  that  no  objection  being  raised,  either  in  the  an- 
swer, or  on  the  trial,  to  the  plaintiff's  right  to  recover,  on  that  ground,  the 
right  to  object  must  be  deeme<l  to  have  been  waived. 

^.  That  it  was  not  requisite  that  the  5  per  cent  should  be  paid  on  the  defendant's 
subscrifition,  to  make  it  valid  and  binding  upon  him  ;  the  corporation  being 
created  without  liis  stock. 

The  second  section  of  the  act  of  1847  only  requires  five  per  cent  to  be  paid  ir 
on  the  stock  relied  upon  as  a  basis  to  create  the  corporation. 

Th»  forfeiture  of  stock,  authorized  by  the  39th  section  of  that  act,  in  case  of 


ESSEX— JULY,  18:5.  157 


Eastern  Plank  Road  Co.  v.  Vaughan. 

uon-payment  of  calls,  is  a  cumulative  remedy,  and  can  only  be  pursued  en  a 
full  compliance  with  the  requirements  of  the  act. 

Where  subscribers  agree  to  pay  the  amount  of  their  subscriptions,  at  such  times 
and  in  such  manner  as  shall  be  required  by  the  board  of  directors,  as  soon  as 
the  board  makes  the  requirement  the  obligations  of  the  subscribers  become 
operative,  without  the  notice  of  30  days  mentioned  in  the  39th  section  of  the 
plank  road  act. 

That  notice  is  to  be  regarded  as  preliminarj-  only  to  a  right  to  forfeit  the  stock. 

THIS  action  was  brought  to  recover  an  alleged  subscription  to 
the  capital  stock  of  the  plaintiffs'  corporation.  The  cause 
was  tried  in  1853,  and  judgment  rendered  for  the  plaintiifa  for 
the  full  amount  claimed.  In  January,  1850j  the  defendant  and 
certain  other  persons  subscribed  the  following  paper :  '•  We,  the 
subscribers,  for  value  received,  promise  to  pay  John  H.  Boyd  and 
Isaac  Wood,  $100,  for  each  share  by  us  subscribed  and  set 
opposite  our  respective  names,  for  the  purpose  of  building  a 
plank  road  from  the  Whitehall  and  Granville  Turnpike  to  the 
road  running  north  and  south  past  the  Methodist  church  ;  and 
that  said  Boyd  and  Wood  shall  have  the  right  and  we  hereby 
authorize  them  to  transfer  our  subscription  to  a  company  here- 
after to  be  formed  for  the  purpose  of  building  said  road."  The 
defendant  took  one  share.  In  September  of  the  same  year  the 
articles  of  association  were  adopted  and  signed  by  subscribers 
for  stock,  to  an  amount  exceeding  the  sum  required  by  statute 
without  including  the  defendant,  and  in  Noveiuljer  the  organi- 
zation was  completed  by  filing  the  articles  of  association,  prop- 
erly verified,  in  the  oflBce  of  the  secretary  of  state.  By  the 
articles  of  organization,  the  subscribers  promise  to  pay  in  their 
subscriptions  as  called  for  by  the  directors,  not  exceeding  25 
per  cent  at  any  one  time.  The  subscription  of  January  pre- 
vious, signed  by  the  defendant  and  others,  was  transferred  to 
the  plaintiff's  by  Boyd  and  Wood.  After  the  organization  and 
transfer  of  subscription,  the  corporation  completed  the  road 
and  the  same  is  now  in  operation.  On  the  25th  of  March, 
1851;  a  call  for  payment  on  the  subscriptions  to  stock  was 
made,  of  13  per  cent,  payable  April  15th,  and  further  payments 
of  15  per  cent  each,  payable  May  Ist,  May  15th  and  June  1st ; 
>.ud  on  the  13th  of  June  a  call  for  the  balance  was  made,  pay- 


158  OASES  IN  THE  SUPREME  COURT. 

Eastern  Plank  Road  Co.  v.  Vaughan. 

able  on  the  1st  of  July.  Notice  of  those  calls  was  immediately 
given  to  the  defendant,  and  a  personal  demand  made  for  his 
subscription,  which  was  refused.  There  was  no  proof  of  the 
payment  of  five  per  cent  at  the  time  of  the  subscription,  or  at 
any  other  time. 

Joseph  Potter,  for  the  plaintiifs. 

Robert  Doig,  for  the  defendant. 

Bp  the  Court,  James,  J.  The  defendant  insists  that  the 
judgment  entered  in  this  action  is  erroneous,  and  that  the  same 
should  be  set  aside  and  a  new  trial  granted.  1st.  Because  the 
plaintiffs  did  not  prove  themselves  a  corporation  ;  2d.  Because 
the  alleged  subscription  was  void  ;  3d.  Because  the  alleged  sub- 
scription was  never  legally  transferred  ;  4th.  Because  there 
was  never  any  valid  call  for  the  subscription  ;  and,  5th.  Because 
the  complaint  is  on  an  absolute  subscription  for  stock,  while  the 
contract  shows  an  executory  agreement  to  take  stock. 

To  establish  the  plaintiffs'  incorporation  tlie  proof  showed 
that  notice  of  opening  the  books  of  subscription,  as  required  by 
the  laws  of  1847,  was  properly  given ;  that  stock  to  over  $500 
per  mile  was  subscribed  to  the  original  articles  of  association ; 
the  election  of  directors  on  due  notice ;  articles  of  association, 
subscribed  as  required  by  the  act,  indorsed  l)y  an  affidavit  of 
three  directors,  and  duly  filed  in  the  secretary  of  state's  office. 
The  justice  who  tried  the  cause  also  found,  as  a  question  of  fact, 
that  the  plaintiffs,  under  their  organization,  had  constructed  the 
road,  and  put  the  same  in  operation,  which  would  constitute 
them  a  corporation  de  facto,  if  not  de  jure,  as  to  the  defendant 
and  all  third  parties.  {McFarlan  v.  The  Triton  Ins.  Co..  4 
Denio,  395.  Utica  Ins.  Co.  v.  Tilman,  1  Wend.  555.  Fire 
Department  v.  Kip,  10  Weiid.  266.  U.  S.  Bank  v.  Strarns, 
15  Wend.  314.)  Either  view  is  a  complete  answer  to  the  de- 
fendant's first  objection. 

As  I  understand  the  proof,  the  original  subscription  of  the 
defendant  was  delivered  to  the  plaintiffs,  and  the  defendant's 


ESSEX— JULY,  1855.  |59 


Eastern   Plank  Koad  Co.  v.  Vaughan. 

name  subscribed  to  the  books  by  Boyd  and  Wood.  If  Boyd 
and  Wood  were  the  lawfully  appointed  agents  of  the  defendant 
for  the  latter  purpose,  ar.d  the  subscription  would  seem  to  con- 
fer that  power,  then  such  subscription  in  the  books  of  the  cor- 
poration is  binding  and  obligatory  upon  the  defendant,  and  he  is 
a  stockholder  of  the  corporation  to  all  intents  and  purposes,  and 
is  as  much  bound  as  though  he  had  subscribed  the  articles  of 
association  with  his  own  hand.  But,  whether  or  not  Boyd  and 
Wood  were  authorized  to  sign  the  defendant's  name  to  the  arti- 
cles of  association,  they  were  fully  authorized  to  transfer  to  the 
plaintiffs  the  subscription, of  January,  1850,  which  they  did  ;  and 
isuch  transfer  vested  in  the  plaintiffs  the  title  to  such  subscription, 
and  the  authority  to  collect  and  receive  the  moneys  due,  or  to 
become  due  under  it.  Such  transfer  need  not  be  evidenced  by 
writing  ;  a  parol  assignment,  accompanied  by  a  delivery  of  the 
instrument,  is  sufficient.     {^Prescott  v^  Hull^  17  John.  Rep.  285.) 

But,  the  principal  question  is,  whether  this  subscription  was 
void  for  want  of  consideration.  The  defendant  insists  that  it 
was,  and  relies  upon  the  case  of  The  Trustees  of  Hamilton 
College  V.  iStewa}^t,  (1  Com.  582.)  The  substance  of  that  case, 
as  appears  from  the  opinion  of  Judge  Gardiner,  who  pronounced 
the  decision  of  the  court,  was,  that  the  agreement  upon  which 
the  action  was  brought,  contained  no  undertaking  on  the  part 
of  the  corporation,  its  trustees,  or  agents,  as  a  consideration  for 
the  defendant's  promise  ;  it  expressed  no  consideration,  and  was, 
therefore,  without  mutuality,  or  consideration,  to  uphold  it ;  tjjat 
the  agreement  contained  no  express  request  to  the  plaintiffs, 
their  agents,  or  others,  to  perform  any  services,  in  consideration 
of  which  the  defendant  promised  to  pay  his  subscription,  nor 
could  any  request  be  implied  from  the  beneficial  nature  of  the 
service,  or  the  object  to  be  obtained.  But  it  was  conceded  by 
the  learned  judge,  that  had  the  agreement  furnished  evidence  of 
a  request  by  the  defendant  to  the  plaintiffs  to  perform  services, 
in  consideration  of  which  he  promised  to  pay  his  subscription, 
the  right  of  the  plaintiffs  to  the  money  would  have  been  un- 
questionable. 

The  agreement  in  this  case  is  unlike  the  one  in  Hamilton 


160  CASES  IN  THE  SUPREME  COURT. 

Eastern  Plank  Road  Co.  v.  Vaughan. 

College  V.  Stewart.  The  promise  here  purports  to  have  been 
made  for  value  received  ;  and  although  an  attempt  was  made  on 
the  trial  to  prove  the  admission  untrue  in  fact,  the  evidence  was 
insufficient  for  that  purpose,  and  the  admission  stands  uncontra- 
dicted. This  was  prima  facie^  sufficient  evidence  of  a  considera- 
tion to  uphold  the  subscription.  (  Watsoii?s  Executors  v.  Mc- 
Laren, 19  Wend.  557.  Douglass  v.  Howland,  24  id.  55. 
BreiDster  v.  Silence,  4  Selden,  207.) 

But  I  am  not  disposed  to  rest  this  branch  of  the  case  upon 
that  ground  alone.  The  agreement  may  be  regarded  as  an  offer 
or  proposition,  on  the  part  of  the  defendant  and  others,  that, 
providing  a  company  should  be  organized  to  construct  the  plank 
road  mentioned  in  said  agreement,  each  would  take  the  number 
of  shares  of  capital  stock  therein  by  them  subscribed,  and  the 
organization  of  such  corporation,  an  acceptance  of  that  offer  or 
proposition.  If  I  am  right  in  this,  such  promise  is  susceptible 
of  being  enforced,  because  it  induced  others  to  enter  into  engage- 
ments, assume  liabilities  and  incur  expense  on  the  faith  of  such 
proposition.  (Story  on  Contr.  §  453.  12  Mass.  Rep.  190. 
14  id.  172.     6  Pick.  433.) 

The  motives  and  purposes  which  led  to  this  agreement  are 
quite  apparent.  Boyd,  Wood,  the  defendant,  and  other  parties 
to  the  instrument,  desired  the  construction  of  a  certain  plank 
road.  To  accomplish  that  object  it  was  desirable  to  create  a 
plank  road  corporation ;  and  this  agreement  was  executed  by 
thg  parties  thereto  agreeing  to  take  so  many  shares  of  stock  in 
any  company  thereafter  to  be  formed  for  the  purpose  therein 
mentioned,  as  each  should  set  opposite  his  name,  and  empower- 
ing Boyd  and  Wood  to  transfer  the  same  to  such  corporation 
when  created.  Here  was  an  implied,  if  not  an  express  request 
to  Boyd  and  others  to  set  themselves  to  Avork  to  create  such 
a  corporation  ;  they  did  so  ;  labor  was  performed,  expense  in- 
curred, and  obligations  assumed  ;  the  corporation  created  and 
the  subscription  transferred.  This  brings  the  case  directly 
within  the  principle  recognized  by  Judge  Gardiner  in  Hamilton 
College  V.  Stewart,   and    which  is   more    fully    recognized  in 


liSSEX— JULY,  1855.  \Q] 


Eastern  Plaffk  Road  Co.  «.  Vaughan. 

Bar  ties  v.  Ferine,  (9  Barb.  202,)  and  since  aflBrmed  by  this 
court  and  the  court  of  appeals.     (15  Barb.  249.) 

It  was  not  requisite  that  the  five  per  cent  should  be  paid  on 
the  defendant's  subscription  to  make  it  valid  and  binding  upon 
him.  The  corporation  was  created,  without  this  stock.  The 
second  section  of  the  act  of  1847  only  requires  five  per  cent  to 
be  paid  in  on  the  stock  relied  upon  as  a  basis  to  create  the  cor- 
poration. 

By  the  articles  of  association  it  is  provided  that  "  the  capital 
stock  shall  be  called  in  at  such  times  and  in  such  manner  as 
may  from  time  to  time  be  determined  by  the  board  of  directors  ;" 
and  in  the  13th  article  the  subscribers  agree  to  pay  to  the  asso- 
ciation the  sum  of  $100  for  each  share  subscribed,  in  the  man- 
ner specified  in  the  articles  of  association,  not  exceeding  25  per 
cent  at  any  one  time.  On  the  facts,  the  case  stands  thus  :  the 
defendant  agreed  to  pay  his  subscription  of  $100,  in  sums  not 
exceeding  $25  each,  at  such  times  as  should  be  determined  on  by 
the  board  of  directors ;  and  they  determined  that  $13  should 
be  paid  on  the  15th  of  April ;.  $15  on  the  1st  May ;  $15  on  the 
15  th  May  ;  $15  on  the  1st  of  June;  and  $42  on  the  1st  of  July. 
1851 ;  of  which  determination  the  defendant  had  immediate  no 
tice.  Unless  there  is  some  law  to  modify  or  change  the  effect 
of  the  agreement,  the  defendant  was  bound  to  pay  the  first  four 
calls,  amounting  to  $58.  But  the  defendant  insists  that  b}'- 
virtue  of  the  39th  section  of  the  general  plank  road  law  of  1847, 
he  was  entitled  to  thirty  days'  notice  of  the  payments  required 
by  the  board  of  directors,  before  he  was  bound  to  pay  ;  and  that 
such  notice  was  not  given  and  could  rot  be  given  ns  to  the  $13 
on  the  15th  of  April,  and  the  $42  on  the  1st  of  July,  because 
thirty  days  did  not  elapse  between  the  calls  and  days  of  pay- 
ment. That  such  a  notice  was  necessary  before  the  defendant's 
stock  could  be  forfeited,  is  clear ;  but  the  present  is  a  common 
law  action  for  the  amount  of  the  subscription,  under  the  defend- 
ant's agreement  to  pay  $100.  The  forfeiture  authorized  by 
statute  (?  39)  is  a  cumulative  remedy,  and  can  only  be  pursued 
on  a  full  compliance  Avith  the  requirements  of  the  act  by  which 
it  is  given.     In  the  case  of  the  Troi/  and  Boston  Rail  Road 

Vol.  XX.  21 


1  52  CASES  ly  THE  SUPREME  COURT. 

Eastern  Plank  Road  Co.  v.  Vaughan. 

Cn.  V.  TibbUs,  (18  Barb.  297,  300,)  Justice  Wright  remarks, 
that  "it  seems  to  be  well  settled  that  the  obligation  of  actual 
payment  is  created  by  a  subscription  to  a  capital  stock,  unless 
plainly  excluded  by  the  terms  of  the  subscription."  In  this 
case  the  agreement  was  to  pay  $100  as  required  by  the 
board  of  directors,  in  sums  not  .exceeding  $25  at  any  one  time. 
The  board  made  the  requirement,  and  the  obligation  of  the  de- 
fendant became,  operative,  without  the  notice  of  thirty  days 
mentioned  in  the  39th  section  of  the  plank  road  act,  which  notice 
must  be  regarded  as  preliminary  only  to  a  right  to  forfeit  the 
stock.  {The  N.  R.  R.  Co.  v.  Miller,  (10  Barb.  260,  270,  271.) 
In  the  Goshen  and  Minisink  Tump.  Co.  v.  Hurtin,  (9  John. 
217.)  the  action  was  on  a  promissory  note  by  which  the  defend- 
ant proinised  to  pay  "  in  such  manner  and  proportions  and  at 
such  time  and  place,  as  the  said  plaintiff  should  from  time  to 
time  require."  The  court  remarked  that  the  note  was  payable 
absolutely,  not  depending  on  any  contingency ;  and  there  was 
also,  in  that  case,  a  provision  for  forfeiture,  as  in  this  case. 
Several  of  the  cases  cited  in  the  Northern  R.  R.  Co.  v.  Miller, 
{supra,)  bear  on  the  question  under  discussion  ;  although  in 
most  of  them  the  point  was  whether  the  common  law  remedy 
was  retained  in  those  cases  where  the  statute  provided  for  a  for- 
feiture. In  the  Schenectady  and  Saratoga  Plank  Road  Co. 
V.  Thatcher,  (1  Kernan,!^^,)  Justice  Johnson,  in  delivering  the 
opinion  of  the  court,  assumes  the  necessity  of  notice  to  the  sul;- 
scriber  before  action  for  the  subscription ;  but  the  point  deter- 
mined by  the  learned  judge  was  that  the  evidence  in  that  case 
established  the  fact  that  notice  was  given.  It  does  not  appear 
that  this  question  was  consi-dered  by  the  court;  and  until  we 
have  a  decision  from  the  court,  directly  on  the  point,  it  should 
not  be  assumed  that  that  court  intended  to  reverse  or  disregard 
a  long  list  of  well  considered  cases.  The  dictum  in  Small  v. 
The  Herkimer  Man.  Co.,  (2  Com.  330,)  if  entitled  to  weight, 
concludes  this  question.  In  that  case  SnijiU  agreed  to  pay  "  at 
such  times  and  in  such  proportions  as  the  same  sliall  be  required 
by  the  said  directors."  Justice  Gardiner,  at  page  335,  remarks, 
*•  I  agree  with  that  learned  court  that  the  plaintiffs  had  a  remedy 


ESS"X— JULY,  1855.  ]  (33 


Eastern  Plank  Ro  d  Co.  v.  Vaughan. 

by  action  ;  that  the  debt  of  the  defendant,  created  by  his  sub- 
scription, was  entire ;  the  calls  made  by  the  company  merely 
ascertaining  the  amount  and  the  times  when  the  installments  of 
the  debt  should  be  paid."  See  also  the  opinion  of  Justice  Jew- 
ett,  who  dissented  in  this  case,  but  on  a  point  distinct  from  this 
under  consideration.  The  casein  1  Kernan  cannot  be  regarded 
as  an  authority  in  the  defendant's  favor. 

In  my  judgment  the  defendant  was  liable  on  the  first  of  the 
four  calls  of  the  board  of  directors,  without  the  notice  mentioned 
in  section  39  of  the  act.  There  can  be  no  question  as  to  the  2d, 
3d  and  4th  calls,  as  for  those  30  days'  notice  was  given. 

As  to  the  call  of  June  13.  of  42  per  cent,  a  question  remains. 
Although  the  defendant  was  not  entitled  to  30  days'  notice,  still 
his  promise  to  pay  was  not  absolute.  He  did  not  agree  to  pay 
at  once,  but  in  sums  not  exceeding  twenty  per  cent  at  any  one 
time,  and  at  such  times  as  should  be  determined  by  the  board 
of  directors.  Action  by  the  board  was  preliminary  and  was  a 
condition  precedent  to  his  obligation  to  pay  ;  that  action  was  the 
call  for  payment ;  and  in  this  respect  the  case  differs  -from  the 
Goshen  and  Mlnismk  Tnrnp.  Co.  v.  Hurtin,  {supra.)  where 
the  promise  was  to  pay  a§  the  company  should  require ;  which 
made  the  debt  due  on  demand,  and  the  action  was  a  demand. 
This  call  was  made,  but  it  was  for  a  sum  exceeding  the  amount 
which  they  had  a  right  to  demand  at  any  one  time,  and  there- 
fore no  liability  was  created  by  the  call,  and  the  defendant  was 
not  bound  to  pay,  if  that  was  all  there  was  in  the  case.  But 
tiie  defendant  put  himself  upon  no  such  ground,  either  in  his 
answer  or  upon  the  trial ;  and  must  therefore  be  deemed  to  have 
waived  that  point.  {Potter  v.  Deyo,  19  Wend.  361.  Gillett 
V.  Campbell,  1  Denin,  520.  Jeticks  v.  Smith,  1  Conist.  90,  and 
cases  there  cited.)  If  the  objection  had  been  made  at  the  trial, 
the  plaintiffs  might  have  obviateil  it,  by  proving  calls  covering 
the  entire  subscription  for  sums  not  exceeding  25  per  cent  each. 

I  am  also  of  the  opinion  that  the  complaint  is  properly  drjfwn, 
but  admitting  that  it  alone  counted  upon  an  absolute  subscrip- 
tion, in  one  view  I  have  taken  of  this  case,  such  counting  would 
be  proper. 


164  OASES  IN  THE  SUPREME  COURT. 

Eastern  Plank  Road  Co.  v.  Vanghan. 

Upon  the  whole  case  I  have  arrived  at  the  following  con' 
elusions : 

1.  That  the  plaintiffs  proved  themselves  a  corporation, 

2.  That  the  alleged  subscription  was  legal  and  binding. 

3.  That  such  subscription  was  legally  transferred  to  the 
plaintiffs. 

4.  That  calls  in  sums  not  exceeding  25  per  cent  payable  at 
any  one  time,  were  necessary,  by  the  terms  of  the  defendant's 
agreement,  before  any  liability  thereon  accrued. 

5.  That  this  being  a  common  law  action,  30  days'  previous 
notice  of  the  calls  was  not  requisite  to  the  defendant's  liability ; 
in  other  words,  the  39th  section  of  the  plank  road  law  of  1847 
has  no  application  to  this  action. 

6.  That  the  call  for  the  first  four  installments  was  a  compli- 
ance on  the  plaintiffs'  part  with  the  defendant's  agreement  to 
pay  ;  but  that  the  call  for  42  per  cent,  being  for  a  sum  greater 
than  he  had  contracted  to  pay  at  any  one  time,  imposed  no  lia- 
bility on  him. 

7.  That  the  defendant  had  a  right  to  waive  the  call,  for  in- 
stallments in  sums  of  not  exceeding  25  per  cent ;  and  that  no 
objection  being  raised  either  in  the  answer  or  on  the  trial  to  the 
plaintiff's  right  to  recover,  on  that  ground,  that  objection  must 
now  be  deemed  to  have  been  waived. 

Judgment  affirmed. 

[Essex  Qknerai,  Term^  July  2,  1855.  C.  L.  Allen,  Bockei  »nd  Jamet 
JUjStices.] 


FULTON— MAY,  1855.  165 


Thom  vs  vs.  Clapp  and  others. 

The  reniiwil  of  a  warrant  issued  for  the  collection  of  a  school  tax,  is  equivaltnl 
to  issuing  a  new  warrant.  And  if  the  renewal  is  signed  by  only  two  of  the 
trustees  of  the  school  district,  the  third  refusing  to  sign  it,  the  latter  is  not  lia- 
ble for  any  act  done  under  the  warrant. 

If  a  warrant  is  fair  on  its  face,  it  affords  a  complete  protection  to  the  collector; 
and  this  even  though  he  has  knowledge  of  facts  rendering  the  process  void. 

The  warrant  is  sufficient  if  signed  by  two  of  the  trustees. 

A  warrant  is  not  rendered  void  by  a  direction  to  the  collector  to  collect  the  amount 
of  the  tax,  together  with^fc  per  cent  for  his  fees  ;  although  the  act  of  1849 
gives  the  collector  only  one  per  cent  or;  all  sums  paid  in  within  two  weeks. 

The  statute  does  not  prescribe  a  new  form  for  the  warrant,  but  limits  the  action 
of  the  collector  under  it. 

Where  a  tax  is  levied  and  assessed  by  all  the  trustees,  aid  in  performing  that  duty 
they  act  together  and  all  concur,  it  is  unimportant  whether  all  are  present,  or 
not,  when  the  warrant  is  signed ;  the  signing  of  the  warrant  being  but  a  minis- 
terial duty. 

The  statute  requiring  the  tax  to  be  assessed  and  the  tax  list  therefor  to  be  made  out 
by  the  trustees  and  a  warrant  attached  thereto,  within  thirty  days  after  the 
district  meeting  at  which  the  tax  was  voted,  is  merely  ^directory,  as  to  time. 
It  being  for  the  benefit  of  the  public,  those  acts  may  be  done  after  the  time 
specified  in  the  statute  has  elapsed, 

rpHIS  action  was  brought  against  the  trustees  and  collector 
X  of  school  district  No.  3,  in  Hebron,  Washington  county, 
the  plaintiff  claiming  to  recover  the  value  of  a  cow  seized  and 
sold  by  th'C  collector  under  a  warrant  issued  by  tAvo  of  the  three 
trustees.  The  warrant  purported  to  have  been  issued  on  the 
16th  of  June,  1853,  and  was  signed  by  Clapp  and  Hathway. 
It  was  renewed  July  18,  thereafter,  and  the  renewal  was  signed 
by  Clapp  and  Chapman.  The  list  of  inhabitants  and  appor- 
tionment of  the  tax  to  which  the  warrant  was  attached  was 
signed  by  all  three  of  the  trustees.  The  tax  was  levied  for  the 
purpose  of  raising  five  hundred  dollars  to  build  a  school  house. 
The  authority  for  levying  the  tax  was  a  resolution  adopted  Jan. 
4,  1853,  at  a  district  meeting,  and  was  as  follows  :  "Resolved, 
by  the  consent  of  the  town  superintendent,  we  raise  the  sum  of 
five  hundred  dollars  to  build  a  new  house  in  said  district."  No 
consent  by  the  superintendent  was  proved,  but  no  objection  was 
made,  on  the  trial,  to  the  defect  of  proof,  nor  was   it  suggested 


166  OASES  IN  THE  SUPREME  OOUPwT. 

Thomas  v.  Clapp. 

in  the  notice  of  appeal.  The  trustees  acted  together  in  making 
out  the  tax  list,  and  in  apportioning  the  tax ;  but  there  was  no 
meeting  by  them  either  to  sign  the  warrant  or  its  renewal,  nor 
was  the  warrant  or  renewal  signed  by  two  of  the  three  when  they 
were  all  present,  or  at  a  time  and  place  of  meeting  of  which  all 
had  notice.  The  cow  was  seized  under  the  warrant  as  renewed, 
about  the  8th  of  August,  and  was  sold  about  the  15th.  Judg- 
ment was  rendered  for  the  plaintiff,  which  on  appeal  was  re- 
versed by  the  county  court.  An  appeal  was  then  taken  to  this 
court. 

W.  H.  Brown,  for  the  appellant. 

L.  Frazer,  for  the  respondents. 

BocKES,  J.  The  renewal  was  equivalent  to  a  new  warrant. 
(Seaman  v.  Benson.  4  Barb.  444.  Smith  v.  Randall,  3  Hill, 
498.  Folsom  v.-Streeter,  24  Wend.  269.  Gale  v.  Mead, 
4  Hill,  109.  Parker  v.  Brown,  17  Barb.  145.)  The  cow  was 
therefore  seized  and  sold  under  the  command  of  Clapp  and 
Chapman  only.  Ilathway  did  not  sign  the  renewal,  but  re- 
fused so  to  do.  The  county  judge  was  therefore  correct  in  de- 
ciding that  the  judgment  was  erroneous  as  to  Hathway.  The 
point  is  decided  in  Van  Rensselaer  v.  Kidd,  (2  Selden,  331,) 
where  it  is  held  that  an  officer  issuin":  a  warrant  which  is  irreji- 
ular  and  void,  is  not  liable  for  the  execution  of  it,  after  the 
return  day. 

If  the  warrant  was  fair  on  its  face  it  afforded  complete  pro- 
tection to  the  collector.  {Alexander  et  al.  v.  Hoyt,  7  Wend. 
89.  Savacool  v.  Bonghton,  5  id.  170.  Dunlap  v.  Hunting. 
2  Denio,  643,  645.  Bennett  v.  Burch,  1  id.  141,  145,  146. 
Cornell  v.  Barnes,  7  Hill,  35.)  And  this  rule  obtains,  even 
though  he  has  knowledge  of  facts  rendering  the  process 
void.  {The  People  v.  Warren,  5  Hill,  440.  Webber  w  Gay, 
24  Wend.  485.)  The  warrant  commands  the  collector  to  col- 
lect the  several  sums  specified  ir.  the   tax  list  annexed,  from        I- 

i 


I 


I 


FULTON— MAY,  1855.  \Q'^ 


Thomas  v.  Clapp. 


the  persons  therein  named,  as  thereby  assessed,  together  with 
five  per  cent  for  fees.  If  there  is  any  informality  in  the  war- 
rant i ;  consists  in  the  direction  to  collect  five  per  cent  for  fees ; 
the  law  of  1849  (Sess.  Laws  of  1849,  p.  555)  entitling  the 
collector  to  but  one  per  cent  on  all  sums  paid  in  within  two 
weeks.  This  statute  does  not  prescribe  a  new  form  for  the 
warrant,  but  limits  the  action  of  the  collector  under  it.  lie 
cannot  demand  or  receive  over  one  per  cent  for  such  sums 
as  may  be  paid  in  to  him  within  two  successive  weeks,  and 
when  he  proceeds  to  collect  after  the  expiration  of  that  time  he 
may  collect,  and  should  be  commanded  to  collect,  five  per  cenfc 
for  his  fees.  He  is  to  remain  passive  to  receive  during  two 
weeks,  and  then  is  to  proceed- to  collect,  when  he  may  demand 
five  per  cent  on  his  collections  for  fees.  {Parker  v.  Brown,  17 
Barb.  145.)  It  was  sufficient  that  the  warrant  was  signed  by 
two  of  the  trustees.  The  statute  requires  that  the  warrant 
should  be  under  the  hands  of  the  trustees,  or  a  majority  of 
them.  (1  R.  iS.  903,  4t/i  ed.  p.  144.  Folsom  et  al.  v.  Streeter, 
24  We/id.  266  )  The  warrant  Avas  fair  on  its  face,  and  hence 
afforded  complete  protection  to  the  collector. 

The  tax  was  levied  and  assessed  by  all  the  trustees  ;  and  in 
performing  those  duties  they  acted  together,  and  all  concurred. 
This  was  an  end  of  their  judicial  labors,  and  it  was  unimport- 
ant whether  all  were  present  or  not  when  the  Avarrant  was 
signed.  The  signing  of  the  warrant  was  but  a  ministerial  duty. 
The  case  of  Lee  v.  Parry,  (4  Denio,  125,)  and  kindred  cases, 
have  therefore  no  application  to  this. 

The  statute  requiring  the  tax  to  be  assessed  and  the  tax  list 
therefor  to  be  made  out  by  the  trustees  and  a  proper  warrant 
attached  thereto,  within  thirty  days  after  the  district  meeting 
in  which  the  tax  shall  have  been  voted,  is  merely  directory  as 
to  time.  It  being  for  the  benefit  of  the  public,  those  acts 
may  be  done  after  the  time  specified  in  jhe  statute  has  elapsed. 
( Gale  V.  Mead,  2  Denio,  160,  and  cases  there  cited.) 

It  only  remains  to  inquire  whether  the  trustees  had  juris- 
dirticn  to  levy  the  tax ;  and  on  this  question  there  can  be  but 


(63  CASES  IN  THE  SUPREME  COURT. 

Tho  People  v.  Toynliee. 

one  opinion.  They  acted  in  pursuance  of  their  duty,  under  a 
resolution  adopted  at  a  regular  meeting  of  the  inhabitants  of 
the  district. 

The  judgment  of  the  county  court  should  be  affirmed. 

[Fulton  Special.  Tkrm,  May  15,  1855.  Boekes,  Justice.  AflBrmed  at  the 
Essex  General  Term,  July  2,  1855,  C.  L.  Allen,  Boekes  and  James,  Justices, 
for  the  reasons  given  in  above  opinion.] 


Thk  People,  on  the  complaint  of  John  Mathews    r*. 
Thomas  Toynbee. 

The  Same,  on  the  complaint  of  John  E.  Yassar,  vs.  Philip 
Berberrich. 

Sc  much  of  the  1st  section  of  the  act  of  the  legislature  entitled  "  An  act  for  the 
prevention  of  intemperance,  pauperism  and  crime,"  passed  April  9,  1855,  as 
declares  that  intoxicating  liquors  shall  not  be  sold  or  kept  for  sale,  or  with  in- 
tent to  l)e  sold,  except  by  the  persons  and  for  the  special  uses  mentioned  in 
the  act ;  so  much  of  sections  6,  7, 10  and  12  as  provide  for  its  seizure,  forfeiture 
and  destruction  ;  so  much  of  the  16th  section  as  declares  that  no  person  shall 
maintain  an  action  to  recover  the  value  of  any  liquor  .sfikl  or  kept  by  him 
which  shall  be  purchased,  t;iken,  detained  or  injured,  unless  he  prove  that  the 
same  was  sold  according  to  the  provisions  of  the  act,  or  was  lawfully  kept  and 
owned  by  him  ;  so  much  of  section  17  as  declares  that  upon  the  trial  of  any 
complaint  under  the  act,  proof  of  delivery  shall  be  proof  of  sale  and  proof 
of  sale  shall  be  sufficient  to  sustain  an  averment  of  imlawful  sale ;  and  so  much 
i)f  section  25  as  declares  that  intoxicating  liquor  kept  in  violation  of  any  of  the 
provisions  of  the  act,  sliall  be  deemed  to  be  a  public  nuisance — are  repugnant 
to  the  provisions  of  the  constitution  fbr  the  protection  of  liberty  and  {)roperty, 
and  are  absolutely  void.     Rockwell,  J.,  dissented. 

rpHE  first  of  these  cases  came  before  the  court  on  an  ap- 
X  peal  from  a  court  of  special  sessions  in  the  city  of  Brooklyn, 
and  the  other  by  certiorari  to  a  court  of  special  sessions  of  the 
county  of  Dutchess,  in  which  courts  the  defendants  were  sever- 
ally convicted  of  violations  of  the  act  of  the  legislature  entitled 


DUTCHESS— JULY,  1855.  ]Qg 


The  People  r.  Toynbee. 


"An  act  for  the  prevention  of  intemperance,  pauperism  and 
crime,"  passed  April  9,  1855,  and  usually  known  as  the  "  Pro- 
hibitory Liquor  Law."     {Laws  of  1855,  p.  340.) 

Jo/ri  A.  Lott  and  A.  Hadden,  for  the  appellants.  L  The 
acj;  under  which  the  proceedings  in  this  case  were  instituted,  is 
unconstitutional  and  void.  1st.  Because  it  is  in  violation  of  the 
first  section  of  article  1,  of  the  constitution  of  the  state  of  New 
York,  which  provides  that  "  no  member  of  this  state  shall  he 
disfranchised  or  deprived  of  any  of  the  rights  or  privileges  se- 
cured to  any  citizen  thereof,  unless  by  the  law  of  the  land,  or 
the  judgment  of  his  peers.  By  "  the  law  of  the  land,"  is  meant 
a  proceeding  according  to  the  course  of  the  common  law  :  a 
trial  and  judicial  sentence,  and  not  merely  a  statute  passed  for 
accomplishing  the  wrong.  The  property,  the  keeping  of  which 
is  prohibited,  is  not  only  declared  to  be  a  public  nuisance,  by 
section  25,  but  the  natural  and  unavoidable  effect  of  the  act  is 
to  render  the  property  useless  and  unavailable  to  its  owners  as 
an  article  of  traffic,  and  in  the  manner  in  which  it  has  hereto- 
fore been  used  and  disposed  of ;  and  the  right  to  use  his  own 
property,  to  control  and  dispose  of  it,  is  a  right  and  privi- 
lege secured  to  every  citizen.  Previous  to  the  passage  of  the 
act  under  consideration,  great  numbers  of  the  citizens  of  the 
state  had,  by  manufacture  and  purchase,  acquired  and  become 
the  owners  of,  and  therefore  had  vested  rights  in  large  quanti- 
ties of  liquors,  wines  and  ales,  the  value  of  the  principal  part 
of  which  will  be  entirely  destroyed  if  the  act  be  sustained. 
The  act  is  in  violation  of  the  same  section  of  the  constitution 
in  this  also  :  That  by  the  16th  section  of  the  act,  every  person 
who  shall  be  engaged  in  the  sale  of  the  prohibited  article,  is 
deprived  of  his  competency  and  right,  when  called  upon,  to  act 
as  a  juror  upon  any  trial  under  any  provision  of  the  act,  with- 
out any  legal  or  sufficient  reason.  {Green  v.  Green  et  al. 
1  Curtis.  328.)  2d.  Because  section  5th,  which  directs  the 
trial  of  the  accused  by  courts  of  special  sessions,  is  in  violation 
of  sec.  6,  art.  1,  of  the  constitution,  which  provides  that  no 
person  shall  be  held  to  answer  for  an  infamous  crime  (except  in 

Vol.  XX.  22 


170  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  To)nbee. 

the  cases  there  specified)  unless  on  presentment  or  indictment  of 
a  grand  jury.  3d.  Because  it  violates  sec.  2  of  art.  1,  of  the  con 
stitution,  which  secures  the  right  of  trial  by  jury,  inasmuch  as 
the  5th  section  of  the  act  restricts  the  number  of  jurors  to 
act  on  trials  under  the  provisions  of  the  act,  to  six  only ;  where- 
as the  right  of  trial  by  jury  secured  by  the  constitution  is  the 
right  to  be  tried  by  twelve  jurors.  {Taylor  v.  Porter,  4  Hill, 
140.  See  also  Debates  in  Convention  of  18-^6,  Arsons  edition, 
p.  423,  ^"C.)  4th.  Because  it  violates  sec.  5  of  art.  1  of  the 
constitution,  by  imposing  excessive  fines  and  inflicting  unusual 
punishments.  The  4th  section  of  the  act  provides  that  every 
person  who  shall  violate  any  provision  of  the  preceding  sec- 
tions shall  forfeit  all  the  liquor  kept  by  him  in  violation, of 
either  of  those  sections  ;  which  might  well  amount  to  many 
thousands  of  dollars  in  value.  And  the  same  section  also  di- 
rects the  commitment  of  the  defendant  in  case  of  default  of 
payment  of  any  fine,  costss  and  fees,  or  any  part  thereof,  until 
the  same  are  paid,  ^'not  less  than  one  day  per  dollar  of  the 
amount  unpaid,"  thereby  authorizing  the  imprisonment  of  the 
defendant  for  an  unlimited  time.  5th.  Because  it  violates  that 
part  of  the  6th  section  of  the  constitution  which  provides  that 
no  person  shall  be  deprived  of  property  without  due  process  of 
law.  The  seizure  directed  by  the  12th  section  of  the  act,  is 
without  due  process  of  law.  An  enactment  of  a  legislature 
is  not  a  process  of  law.  Those  words  mean  a  trial  according 
to  the  known  and  established  forms  and  rules  for  ascertaining: 
guilt  or  determining  the  title  to  property.  {Opinion  of  Jus- 
tice Bronson,  in  Taylor  v.  Porter,  4  Hill,  145,  6.  Sackett  v. 
Andross,  5  id.  358,  9.  Westervelt  v.  Gregg,  2  Kernan,  209, 
212.  2  Kent's  Com.  13.  2  Inst.  50.)  The  section  referred 
to  authorizes  and  directs  the  seizure  of  property  to  an  un- 
limited amount  by  every  sheriff,  under  sheriff,  deputy  sheriff, 
constable,  marshal  or  policeman,  however  irresponsible,  and 
without  making  any  provision  for  securing  the  return  thereof 
to  the  owner,  in  any  case. 

II.  The  act  is  an  infringement  of  certain  natural,   funda- 
mental and  obvious  rights  and  principles,  which  are  not  deriveii 


DUTCHESS— JULY,   1855.  17] 


The  People  v.  Toynbee. 


from  nor  defined  by  any  written  constitution  or  laws,  but  which 
are  recognized  by  and  constitute  the  bases  of  both,  thus  The 
right  of  personal  liberty,  and  the  innocent  use  and  enjoyment 
of  the  products  of  our  labor  and  our  propert3^  The  power  of 
the  legislature  in  the  enactment  of  laws,  (whatever  it  may  be 
in  other  countries.)  is  not  unlimited  in  this ;  but  is  restricted 
both  by  the  written  constitution,  and  by  the  generally  received 
jrinciples  of  justice  and  equal  rights  ;  and  ti^e  judiciary  is  the 
only  tribunal  by  which  it  can  be  peaceably  determined  whether 
the  legislature  have  transcended  their  authority.  {Opinion  of 
Justice  Chase,  in  Calder  v.  Bull,  3  Dallas,  386.  Opinion  of 
Chief  Justice  Marshall,  in  Fletcher  v.  Peck,  6  Cranch,  87. 
Opinion  of  Branson,  J.,  in  Taylor  v.  Porter,  4  Hill,  146. 
Opinion  of  Senator  Tracy,  in  Bloodgood  v.  The  Mohawk 
and  Hudson  R.  R.  Co.,  18  Wend.  56,  61,  62,  63.  Opinion  of 
Justice  Hosmer,  in  Goshen  v.  Stonington,  4  Conn.  225.  Wil- 
kinson V.  Leland,  2  Peters,  654.  Smithes  Com.  on  Statutory 
and  Const.  Constr.  258  to  289.  2  Kent's  Com.  329  to  340, 
Lee,  34,  2(/  ed.)  Those  provisions  of  the  act  which  authorize 
the  seizure  and  destruction  of  private  property  ;  which  under- 
take to  prohibit  the  use  to  which  the  proscribed  property  is 
generally  and  principally  appropriated ;  which  declare  that  to 
be  a  crime  which  is  not  considered  by  the  world  criminal,  or 
even  immoral ;  which  assume  the  power  to  determine  physical 
facts,  as  that  all  distilled  and  malt  liquors  are  intoxicating,  are 
unwarranted  by  any  thing  contained  in  the  constitution,  or  in 
the  delegated  powers  of  the  legislature.  What  is  a  nuisance, 
and  what  is  intoxicating,  are  questions  for  adjudication,  and  not 
subjects  of  legislation ;  and  the  legislature  have  quite  as  much 
authority  to  declare  the  use  of  wine  for  sacramental  purposes  a 
nuisance,  and  pure  water  intoxicating,  as  to  determine  such  to 
be  the  respective  characteristics  of  liquor  kept  to  be  used  as  a 
beverage,  and  of  distilled  liquors.  The  prohibition  by  the  act 
80  far.  at  any  rate,  as  regards  domestic  liquor,  is  in  effect  abso- 
lute, because  no  person  under  this  act  can  have  any  authority 
to  sell  any  quantity  of  it,  except  for  purposes  for  which  it  is 
only  accidentally  useful,  and  in  comparatively  minute  quantities, 


1  72  CASES  IN  THE  SUPREME  COURT. 


The  People  v.  Toynbeo. 


and  the  sale  of  it  even  then,  is  authorized  by  a  limited  portion 
of  the  community  onlj^,  under  restrictions  inconsistent  with  the 
proper  disposition  of  property. 

III.  If  the  first  section  of  the  act  is  not  unconstitutional,  it 
does  not  apply  to  imported  liquor.  It  is  imported  liquor  which 
is  authorized  to  be  sold  in  this  state  by  the  laws  and  treaties  of 
the  United  States^  and  it  being  in  unequivocal  terms  provided 
by  the  concluding  clause  of  the  first  section  of  the  act,  that  that 
section  shall  not  apply  to  liquor,  the  right  to  sell  which,  in  this 
state,  is  given  by  any  law  or  treaty  of  the  United  States,  it  is 
submitted,  that  the  language  is  too  plain,  and  the  effect  of  it 
too  obvious,  to  require  the  aid  of  any  rules  of  construction. 
For  authority  that  the  importation  of  foreign  liquor  confers  the 
right  to  sell,  see  Brown  v.  State  of  Maryland,  (12  Wheaton. 
419  to  442.)  The  reference  to  the  laws  and  treaties  of  the  United 
States  is  manifestly,  not  for  the  purpose  of  restricting  the  mode 
of  selling,  but  simply  for  the  purpose  of  designating  the  kind 
cf  liquor  exempted  from  the  application  of  the  section. 

IV.  It  should  have  been  averred  in  the  complaint  and  proved 
on  the  trial,  that  the  liquor  sold  was  not  imported  liquor  ,  be- 
cause, when  the  exception  from  the  operation  of  a  general  pro- 
vision is  embodied  in  that  provision,  it  must  be  averred  in  the 
pleading,  that  the  act  complained  of  is  unauthorized  by  the 
exception.  (2  Sawiderson  Pleading,  257.  Vavasour  \.  Or- 
mond,  6  Barn,  tj-  Ores.  431.  1  Chitty's  Crim.  Latv,  283,  284, 
285.  Teel  v.  Fonda,  4  John.  304.)  The  exception  is  inclu- 
ded ia  the  general  expression  "  except  as  hereinafter  provided,-' 
in  the  first  line  of  the  section,  although  more  particularly  de- 
scribed in  the  last  clause  of  it. 

V.  The  champagne  wine  sold  by  the  appellant,  was  not  sold 
in  violation  of  the  act,  under  any  construction  of  it,  because, 
1st.  It  was  at  folio  16  of  the  case  proved  to  be  "imported 
liquor ;"  and  secondly,  because  there  is  no  regulation  or  restriction 
as  to  the  quantity  or  form  in  which  wine  may  be  imported. 

VL  The  judgment  of  the  court  of  special  sessions  is  errone- 
ous, because  it  does  not  specify  whether  the  appellant  was  con- 
victed of  selling  the  brandy  or  champagne  ;  or  which  of  them 


DUTCHESS— JULY,  1855.  173 


The  People  v.  Toynbee. 


he  was  convicted  of  having  in  his  possession  with  intent  to  sell ; 
nor  for  what  he  was  adjudged  guilty  of  a  misdemeanor ;  nor  for 
what  he  was  sentenced  to  pay  the  penalty  of  fifty  dollars ;  and 
also  because  it  adjudged  too  that  the  champagne  wine  which 
was  proved  to  be  imported  liquor,  be  forfeited  and  destroyed. 

VII.  The  judgment  of  the  court  of  special  sessions  was  con- 
trary to  law  and  the  evidence,  and  should  be  reversed. 

/.  M.  Van  Cott,  and  N.  F.  Waring,  for  the  plaintiffs.  The 
attention  of  the  court  is  asked  to  two  questions,  1st.  To  the  ex- 
tent of  the  prohibitions  contained  in  the  act  of  1855,  to  prevent 
pauperism  and  crime ;  and  2d.  To  the  validity  of  such  prohi- 
bition. 

I.  The  prosecutor  claims,  that  the  exception  in  section  1,  ex- 
tends only  to  imported  liquor  while  in  the  original  package  of 
importation.  The  exception  does  not,  in  terms,  name  foreign  or 
imported  liquor  at  all ;  and  the  court  is  comjjelled  to  look  be- 
yond the  act  and  into  the  treaties  and  statutes  of  the  United 
States,  to  learn  what  is  excepted.  If  those  treaties  and  stat- 
utes said,  in  terms,  (what  the  supreme  court  in  Brown  v.  Mary- 
land, 12  Wheat.  419,  decided  they  say  by  implication)  that 
imported  liquors  may  be  sold  while  in  the  original  packages, 
those  terms  would  have  to  be  imported  into  our  statute,-  and 
being  there,  would  clearly  define  the  scope  and  limit  of  the  ex- 
ception. No  rule  of  interpreting  penal  statutes  requires  the 
court  to  disregard  this  decisive  method  of  expounding  this  ex- 
ception. 

If  any  doubt  were  left  by  this  view,  it  would  be  dissipated  by 
§  22,  The  sole  office  of  that  section  will  be  found  to  be,  to  de- 
fine and  limit,  the  undefined  and  unlimited  expressions  of  sec- 
tion 1.  It  contracts  the  large  expressions,  "  intoxicating  liquor," 
in  section  1,  by  excluding  from  their  operation  much  that  those 
large  terms  would  include. 

And  it  defines  the  exception  in  section  1,  to  mean  imported 
liquor  "  in  the  original  packages."  It  does  not  weaken  this  to 
say,  that  this  definition  in  section  22,  misapprehends  the  decis- 
ion in   Brown  v.  Maryland ;  for  we  are   inquiring  what  the 


I  74  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toynbee. 

lef^islature  intended.  We  say,  they  intended  to  limit  the  ex- 
ception to  the  "  orifi^inal  packages,"  and  that  that  intention  is 
not  disproved  by  saying  they  also  intended  to  limit  it  to  such 
original  packages,  while  in  the  hands  of  the  original  importer. 
The  paramount  rule  of  construction  is,  that  the  intention  of  the 
legislature  is  to  take  effect.  All  other  rules  are  subsidiary 
to  this. 

For  two  striking  illustrations,  in  the  case  of  penal  statutes, 
see  People  v.  Bedell,  (2  Hill,  196  ;)  also  under  the  general  bank- 
rupt act,  Mr.  Lord's  opinion  concedes,  that  the  intent  of  the 
legislature,  so  to  limit  the  exceptions,  is  pretty  decisively  indi- 
cated. And  we  saj'^,  that  such  intent  speaks  through  all  the 
terms  and  the  entire  frame  of  the  act. 

II.  The  prohibitory  part  of  the  act  is  within  the  constitutional 
competency  of  the  legislature.  1.  The  prohibition  is  not  total. 
(1.)  It  permits  the  liquor  to  be  kept  and  used  by  its  owner  for 
any  and  every  purpose.  (2.)  It  permits  the  owner  to  export  the 
whole  of  it.  (3.)  It  permits  an  unlimited  sale  by  the  owner 
(from  9th  April  to  4th  July.)  for  a  period  of  three  months. 
■within  the  state,  subject  to  existing  laws.  In  this  respect,  the 
act  is  analogous  to  the  statutes  abolishing  slavery  after  a  pros- 
pective date.  And  like  the  recording  acts.  See  Varick  v. 
Briffffs,  (6  Paige,  323,  unanimously  affirmed  by  conrt  of  er- 
rors, 22  Wend.  643.)  where  it  was  held,  that  an  owner  who' 
did  not  record  his  deed  within  the  limited  ^qy'xoA,  forfeited,  his 
estate  to  a  subsequent  bona  fide  purchaser,  who  first  recorded 
his  deed.  (4.)  It  permits  the  sale  of  imported  liquor  under 
treaties  and  acts  of  congress.  (5.)  It  permits  the  sale  (under 
license,  and  the  validity  of  a  license  system  is  not  denied)  of 
all  liquor,  within  the  state,  for  mechanical,  manufacturing  and 
medicinal  purposes.  (6.)  And  finally,  it  onh'  prohibits  a  sale 
for  particular  purposes,  and  the  keeping  it  for  such  unlav)ftil 
sale.  The  question  as  to  the  power  to  pass  prohibiting  laws  as 
presented  by  this  act  is  thus  greatly  narrowed. 

But  tlie  act  may  be  said  to  involve  the  whole  principle  of 
prohibitory  laws,  and  I  shall  so  discuss  it.  (1.)  On  grounds 
of  abstract  reason,  relating  to  the  nature  of  civil  society,  and  to  the 


DUTCHESS— JULY,  1855.  175 


The  Peoj)le  f.  Toynbee. 


particulj^r  organic  societies  framed  on  the  English  moilel ;  ami 
(2.)  On  the  terms  of  the  state  constitution,  and  the  principles 
of  adjudged  cases. 

III.  The  act  in  question  is  in  the  nature  of  a  police  regula- 
tion, and  falls  within  the  necessary  powers  of  civil  government. 
The  fundamental  idea  of  a  police  regulation  is,  that  it  forbids 
acts  deemed  injurious  to  the  society,  and  which  the  collective 
will  and  force  of  the  society  are  alone  competent  to  prevent, 
Society  is  founded  on  the  paramount  law  of  self  defense.  Its 
organism  should  therefore  arm  it  against  all  internal  and  external 
foes.  To  that  end,  there  must  reside  somewhere  in  it  the  power 
to  determine  what  is  hostile  to  its  existence  and  what  means 
shall  be  used  to  repel  the  danger.  In  a  pure  democracy  that 
power  would  reside  in  the  collective  people.  In  a  representa- 
tive government,  it  will  be  lodged  in  some  great  department. 
In  modern  political  societies,  and  especially  in  those  formed  on 
the  English  model,  that  sovereign  power  is  lodged  in  the  legis- 
lative department.  It  is,  confessedly,  lodged  i?i  no  other  de- 
partment in  our  American  system.  Wherever  lodged,  it  must 
be  as  ample  as  when  originally  exerted  by  the  collective  people. 
in  a  democracy.  In  the  nature  of  things  it  is  a  comprehensive 
and  undefined  power.  The  exigencies  of  society,  as  to  persons 
and  things,  and  as  to  time,  place  and  circiimstances,  are  infi- 
nite, and  so  must  be  the  power  that  provides  for  those  exigen- 
cies. '•  The  contingencies  of  society  are  not  reducible  to  cal- 
culations ;  they  cannot  be  fixed  or  bounded,  even  in  imagination. 
Will  you  limit  the  means  of  your  defense,  when  you  cannot 
ascertain  the  force  or  extent  of  the  invasion  ?"  {Hamilton, 
Works,  vol.  2,  p.  457.)  '•  When  you  have  divided  and  nicely 
balanced  the  departments  of  governinent ;  when  you  have  strong- 
ly connected  the  virtue  of  your  rulers  with  their  interest ;  when, 
in  short,  you  have  rendered  your  system  as  perfect  as  human 
forms  can  be,  you  must  place  confidence,  you  must  give  power." 
{Id.  454.)  And  see  the  arguments  of  Mr.  Hamilton  and  Mr. 
Madison,  in  the  Federalist  and  in  the  letters  of  Pacificus  and 
Helvedius,  where  the  nature  of  legislative  and  judicial  powers 
is  discussed,  and  this  principle  established  by  irresistible  argu- 


76  CASES  IN  THE  SUPKEME  COUliT. 


The  People  v.  Toynbee. 


nents.  To  limit  this  general  poAver  to  defend  the  society 
figainst  internal  and  external  dangers,  would  leave  it  vulnerable 
at  that  point,  and  invite  attack  where  it  was  thus  less  undefend-"^ 
ed  ;  as  Achilles  was  mortally  wounded  in  the  heel.  It  would 
be  found  on  investigaiton,  that  no  American  constitution  con- 
tains such  a  limitation  among  its  restrictive  articles.  Not  one 
limits  the  power  to  determine  what  physical  acts  or  facts 
are  dangerous  to  society,  and  what  means  shall  be  used  to  repel 
the  danger.  And  it  results  from  the  constitution  of  society  and 
tne  nature  of  government,  that  what  powers  of  defense  are  not 
integrated  in  the  organism  itself,  do  not  exist  any  where.  If  it 
is  said  the  legislature  cannot  by  statute  prohibit  a  certain  traffic, 
because  the  prohibition  violates  the  first  principles  of  society, 
we  answer  it  would  result  that  neither  could  the  people,  by  their 
constitution,  prohibit  it ;  and  if  the  statute  is  to  be  overthrown 
by  the  judiciary  on  any  such  abstract  notion,  it  would  be  equal 
ly  at  liberty  and  bound  to  overthrow  a  like  express  constitutional 
prohibition ;  the  limitation,  quoad  hoc,  being  equally  upon  the 
people  and  the  people's  representatives,  to  the  legitimate  ends 
of  society  and  government.  The  denial  that  the  people  have 
delegated  the  power  to  the  legislature,  to  enact  the  law  in  ques- 
tion, on  the  ground  on  which  it  is  placed,  is  the  denial  of  the 
power  of  the  people  to  delegate  such  an  authority.  But  if  the 
power  of  the  collective  people  to  enact  such  laws,  is  conceded 
or  proved,  we  proceed  to  maintain, 

IV.  Under  the  state  constitution,  the  legislature  is  invested 
with  power  to  pass  prohibitory  laws,  like  that  in  question. 
{Constitution  1777,  §  2.)  "  The  supreme  legislative  power 
within  this  state  shall  be  vested  in  two  separate  and  distinct 
bodies  of  men."  {Const,  of  1822,  §  3,  art.  1,  §  1.)  "The 
legislative  power  of  this  state  shall  be  vested  in  a  senate  and 
Assembly."  {Const,  o/ 1846,  art.  3,  §  1.)  "The  legislative 
power  in  this  state  shall  be  vested  in  a  seriate  and  assembly." 
What  do  the  terms  "  the  legislative  power,"  and  "  the  supreme 
legislative  power," import?  The  two  expressions  are  undoubt- 
edly equivalent.  The  grant  is  of  "  the^^  legislative  power — the 
ufiole   power — the  power  as  large  in  its  substance  as  it  can  be 


DUTCHESS— JULY,  1855.  ]77 


The  People  v.  Toynbee. 


conceived  in  idea.  The  distinction  between  the  federal  and 
state  governments  is  familiar.  The  federal  goyernment  takes 
no  pwjoer,  not  expresssly  or  by  necessary  implication  granted  ; 
the  state  government  takes  all  power,  not  expressly  or  by 
necessary  implication  withheld.  The  terms  in  which  the  legis- 
lative power  is  granted  are  intentionally  unlimited  and  unqual- 
ified. The  framers  intended  to  grant  a/Z,  so  far  as  the  articles 
cited  are  employed,  and  to  provide  elsewhere,  by  express  re- 
strictions, for  the  only  limitations  by  which  the  legislative 
department  should  be  circumscribed.  The  state  government 
having  been  instituted  by  English  colonists,  and  avowedly  on 
the  English  model,  we  are  to  ascertain  the  import  of  the  terras 
they  have  used  by  learning  the  sense  in  which  they  were  under- 
stood in  the  English  law,  and  by  those  colonists  and  the  cotempo- 
rary  writers.  That  is  the  approved  mode  of  defining  constitu- 
tional language.  Dash  v.  Van  Kleecic,  per  Spencer,  J.  (7  John. 
488,  9.)  Calder  and  vnfe  v.  Bull  and  wife,  (3  Dallas, 
396.)  In  these  cases,  the  court  take  Blackstone's  definition 
of  ex  post  facto  laws,  as  an  authoritative  exposition  of  those 
terms  in  the  constitution.  (4  Cok^s  Inst.  36.)  "  The  power 
and  jurisdiction  of  parliament  is  so  transcendent  and  absolute, 
that  it  cannot  be  confined,  either  for  causes  or  persons,  within 
any  bounds.  Lord  Camden,  {Sutick  v.  Carrington,  19  How. 
St.  Tr.  1066,)  having  spoken  of  property  as  sacred,  he  adds, 
but  "it  may  be  taken  away  by  laws  of  forfeiture  and  for  the 
public  good,"  "  every  man,  by  common  consent,  gives  up  that 
right  for  the  sake  of  justice  and  the  general  good."  (1  KenVs 
Com..  320.)  "  The  power  of  making  laws  is  the  supreme  power 
in  a  state."  (1  Black.  Com.  160,  et  seq.)  "  It  (parliament) 
hath  sovereign  and  uncontrollable  authority  in  the  making,  con- 
firming, enlarging,  restraining,  abrogating,  repealing,  reviving, 
and  expounding  of  laws,  concerning  matters  of  all  possible 
denominations,  ecclesiastical  or  temporal,  civil,  military,  mar- 
itime or  criminal,  this  being  the  place  where  that  absolute  despot- 
ic poiver,  which  must  in  all  governments  reside  somewhere,  is 
intrusted  by  the  constitution  of  these  kingdoms.  All  mischiefs 
•jnd  grievances,  operations,  and  remedies,  that  transcend  tlie 
Vol.  XX.  23 


17S  CASES  IN  THE  SUPREME  COLRT. 


The  People  v.  Toynbee 


ordinary  course  of  the  laws,  are  Avitbin  reach  of  this  exl  raordi- 
nar}'^  tribunal"  (2  Story''s  Com.  on  Const,  p.  15,  §  5B2.) 
"  The  truth  is,  that  the  legislative  power  is  the  great  and  over- 
ruling- power  in  every  great  and  free  govermnent.^'  [fd. 
§  533.)  "  There  are  many  reasons  which  may  be  assigned  for 
the  engrossing  influence  of  the  legislative  department.  In  the 
first  place,  its  constitutional  powers  are  more  extensive  and  less 
capable  of  being  brought  within  precise  limits,  than  those  of 
either  of  the  other  departments."  After  speaking  of  the  limits 
on  the  executive  and  judicial,  he  adds  :  "  On  the  other  hand, 
the  legislative  power,  except  in  the  few  cases  on  constitutional 
prohibition,  is  u?Uiniited.  It  is  forever  varying  its  means  and 
its  ends.  It  governs  the  institutions,  and  laws,  and  public 
policy  of  the  country.  It  regulates  all  its  vast  interests." 
Does  not  this  language  describe  a  transcendent  power  ?  Equall}'^ 
decisive  is  the  language  of  Iredell,  J.  and  Spencer,  J.  in  the 
cases  cited,  supra,  from  Dallas^  and  Johnsoti^s  Reports, 
Broom^s  Legal  Maxims,  6.  "From  the  principles  under  con- 
sideration, and  from  the  very  nature  of  the  social  compact  on 
■which  all  municipal  law  is  founded,  and  in  consequence  of  which 
overy  man  when  he  enters  into  society  gives  up  a  part  of  his 
natural  liberty,  result  those  laws  which,  in  certain  cases,  author- 
ize the  infliction  of  penalties,  the  privation  of  liberty  and  even 
the  destruction  of  life,  with  a  view  to  the  future  prevention  of 
crime  and  to  insuring  the  safety  and  well  being  of  the  public." 
{Rutheyforth^s  Inst.  b.  2,  ch.  8,  s§  1  to  5.)  In  section  3,  he  says  : 
"Those  who  are  united  in  a  civil  society,  have  agreed  to  put 
themselves  under  the  conduct  of  the  common  understanding,  to 
have  their  duties  regulated,  and  their  rights  adjusted  by  the 
legislative  power  of  that  society."  {Rousseau's  Social  Cvn- 
pact,  cli  4.)  "  If  the  state,  or  the  city,  be  a  mere  moral  person, 
whose  life  depends  on  the  union  of  its  members,  and  if  the 
most  important  of  its  concerns  be  that  of  its  own  preservation, 
it  should  certairdy  be  possessed  of  an  universal  compulsive 
force,  to  move  and  dispose  each  part  in  such  a  manner  as  is 
most  conducive  to  the  good  of  all.  *  *  *  The  social  compact 
gives  to  the  body  politic  an   absolute   power  over  all  its  mem- 


EUTCIIESS— JULY,  1856.  179 


Tlie  Peop'e  v.  Toynboe. 


i>ers.  *  *  *  It  is  agreed,  that  what  an  individual  alienates  of 
his  power,  his  possession,  or  his  liberty,  by  the  social  compact, 
is  only  such  parts  of  them  whose  use  is  of  importance  to  the 
3ommunity  ;  but  it  must  he  confessed,  also,  that  the  sovereign 
is  the  only  proper  judge  of  this  importance''"'  Locke  and 
Paley  on  government  are  to  the  same  effect.  De  Lolm^e.  S.  P. 
ch.  3,  7,  8.  Sydney  on  Government,  ch.  3,  §§  44,  45,  46.  He 
maintains  the  same  principle,  as  inhering  in  the  very  nature 
and  necessities  of  society.  In  section  45,  he  says,  "If  it  be 
objected  that  I  am  a  defender  of  arbitrary  powers,  I  confess  I 
cannot  comprehend  how  any  society  can  be  established  or  sub- 
sist without  them.  *  *  *  The  judgments  of  men  will  vary  if  they 
are  left  to  their  liberty,  and  the  variety  that  is  found  among  thera, 
shews  they  are  subject  to  no  rule  but  that  of  their  own  reason,  by 
which  they  see  what  is  fit  to  be  embraced  or  avoided,  according 
to  the  several  circumstances  under  which  they  live.  The 
authority  that  judges  of  these  circumstances  is  arbitrary,  and 
the  legislators  shew  themselves  to  be  more  or  less  wise  and 
good,  as  they  do,  rightly,  or  not  righth',  exercise  this  power. 
The  difference,  therefore,  between  good  and  ill  governments  is 
trot,  that  those  of  one  sort  have  an  arbitrary  power  which  the 
others  have  not ;  for  they  all  have  it;  but  that  those  which 
are  well  constituted,  place  this  po^ver  so  as  it  may  be  beneficial^to 
the  people."  {Guizofs  History  of  Representative  Govern- 
ment, p.  442.)  "  But  we  must  necessarily  come  at  last  to  the 
supreme  power  which  superintends  all  others,  and  is  not  itself 
ruled  or  restrained  by  any  visible  and  constituted  power."  For 
further  illustration  of  the  principle  contended  for,  and  of  sove- 
reign power  generally,  see  1  Bl.  Com.  48,  9,  51,  2, 147  ;  Vat- 
tel  b.  1,  ch.  1,  §§  1,  2  •  ch.  3,  §§26,  38;  ch.  20,  §§  240,  244; 
Grotius  on  War  and  Peace,  b.  2,  ch.  14,  §  7  ;  Id.  b.  3,  ch.  22, 
§  7 ;  Puffendorfs  L.  Nat.  and  Nat.  b.  8,  ch.  5,  §§  1,  3,  6,  7  ; 
Thomas^  Univers  Jurisp.  pp.  170,  1,  165,  6. 

That  it  is  competent  for  the  legislature,  "  acting  on  a  broad 
and  general  regard  to  the  interests  of  the  communit}"^,  to  declare 
and  limit  the  uses  to  which  property  may  be  applied,"  see 
Stuyvesant  v.  Mayor  of  Nev^  York,  (7  Coio.  588;)    Vanderhilt 


180  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toyiibee. 

v.^rfaw^,  (7c?.  349;)  Commonwealth  v.  Dana,  (2  Me/c.  *2'29;j 
Bakery.  Boston,  {12  Pick.  184:])  Covimomcealtli\.  Tewk.'ibury, 
(11  Mete.  58,  9  ;)  Same  v.  Alger,  (7  Cush.  86  :)  Preston  v.  Z^rezy, 
(33  Maine  B.  560.) 

For  special  instances  of  the  exertion  of  powers  of  police  and 
regulation,  see  R.  S.  ch.  20,  tit.  9,  "  Of  the  regulation  of  tav- 
erns and  groceries."  Tit.  19,  Brokerage  and  stockjobbing. 
Statutes  laying  out  streets,  and  restricting  prospective  use  of 
property,  see  cited  Matter  of  Furman  street,  (17  Wend.  649.) 
As  to  pulling  down  buildings,  without  compensation,  in  case  of 
fire,  see  2  B.  L.  1813,  7>.  368,  §  81 ;  p.  369,  §  83 ;  Mayor  v. 
Lord,  (17  We7id.  285,  295 ;)  S.  C.  in  error,  (18  id.  126, 130 ;) 
Stonev.  Mayor  ^-c.  of  N.  Y.  (25  id.l57;)  Russell  v.  Same,  (2  De- 
7iio,4:Ql;)  Commotnvealth  V.  Sessions  of  No7 folk,  (5  Mass.  481  ;) 
Same  v.  Sessions  of  Middlesex:,  (9  id.  388.) 

This  legislation,  and  these  cases,  can  only  be  sustained  on 
the  ground  that  property  under  certain  circumstances,  judged 
of  by  the  legislature  or  of  which  others  .are  empowered  to 
judge,  is  dangerous  and  may  be  destroyed.  The  established 
legislation,  and  the  cases  decided  on  these  statutes,  do  not 
sanction  a  distinction  betAveen  malum,  prohibitum  and  malum 
in  se.  Both  classes  of  laws  have  the  same  sanction,  the  public 
will,  ascertained  and  declared  by  the  organic  governments  ; 
and  one  class  of  laws  rests  on  as  solid  a  foundation  as  the  other. 

The  power  to  prohibit,  then,  results,  1.  Froni  the  nature  of 
government,  and  the  illimitable  nature  of  the  power  to  make 
laws  required  for  the  ends  of  society.  2.  Froir.  the  power  oi 
the  society — being  coextensive  with  the  original  power  of  the 
collective  people.  3.  From  the  express  grant  of  the  constitution. 
The  inference  of  the  power  is  strengthened.  4.  By  the /(/c^ 
that  there  are  express  restrictious  upon  the  legislative  power, 
{e.vpressio  miius,  6^c.)  5.  By  the  nature  of  the  restrictive  ar- 
ticles, being  wT^on  fundamental  points,  and  the  only  points  that 
were  deemed  necessary  to  be  reserved,  or  where  reservation  was 
practical  or  safe.  The  function  of  written  constitutions  is  not 
so  much  to  create  as  to  limit  the  powers  of  government ;  and 
where  poAver  is  not  expressly  limited,  a  limitation  is  not  to  be 


DUTCnESS— JULY,  1855.  181 


The  People  v.  Toynbee. 


inferred,  6.  Because,  having  the  general  discretionary  power 
to  pass  pclice  laAvs,  discretion  is  in  its  nature  exclusive  and  not 
subject  to  control.  (1.)  Executive  discretion.  Martin  \.  Mott. 
(12  Wheaton,  28.)  Executive  sole  disci-etion  under  act  of  con- 
gress, to  determine  when  a  case  of  danger  of  invasion  arose,  and 
to  call  out  militia.  (2.)  Judicial  discretion.  It  is  a  settled 
principle  of  the  courts,  that  error  does  not  lie  upon  a  judgment 
in  a  matter  of  discretion.  (3)  Legislative  discretion.  {Beek- 
man  v.  Saratoga  and  iSc/ien.  R.  R.  Co.,  3  Paige,  45.)  Held 
that  it  was  exclusively  for  the  legislature  to  judge  when  public 
necessity  required  the  taking  of  private  property  for  the  quasi 
public  use  of  a  rail  road  company.  (4.)  The  principle  seems  to 
be  a  universal  one  in  our  jurisprudence.  {Laicrence  v.  Minturn, 
17  How.  U.  S.  R.  110.)  The  master  of  a  ship  made  a  jettison 
of  a  very  valuable  part  of  a  cargo  stowed  on  deck.  This  was 
done  in  a  calm,  under  the  apprehension  that  if  a  storm  arose 
the  ship  was  not  strong  enough  to  endure  the  strain  of  the  cargo. 
The  court  Avould  not  entertain  the  question  whether  the  jettison 
was  actually  necessary.  6.  The  court,  by  Curtis,  J.  "  It  will 
he  deemed  to  have  been  necessary  for  the  common  safety,  be- 
cause the  person  to  whom,  the  laio  has  intrusted  authority  to 
decide  upon  and  make  it,  has  duly  exercised  that  authority.''^ 
7.  The  illimitable  character  of  the  legislature  is  also  inferrible 
from  the  nature  and  scope  of  the  other  departments.  (1.)  The 
executive  finds  the  law  made,  and  can  neither  add  to  nor  take 
from  it,  but  simply  executes  it.  (2.)  The  judicial  also  finds 
the  law  made,  and  can  neither  alter,  increase,  nor  diminish  it. 
It  interprets  the  constitution.  It  interprets  the  statutes.  It 
ascertains  and  declares  the  customary  or  common  law.  These 
are  its  atmosphere,  and  it  breathes  nowhere  else.  It  knows 
neither  rights  nor  wrongs,  beyond  these  divisions  of  law.  It 
has  no  general  supervisory  power  over  policy  or  la^vs.  It  de- 
cides betAveen  the  parties  and  upon  the  case  before  it.  How  dif- 
ferent is  all  this  from  the  legislative  !  At  a  single  stroke,  it 
may  destroy  the  whole  body  of  the  statute  and  common  law.  By 
its  single ^a/?,  it  may  recreate  an  entirely  new  body  of  laws,  a 
oivil  and  a  criminal  code.     It  may  change  the  substantive  na- 


182  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toynbee. 

ture,  and  all  the  legal  definitions,  of  crimes.  Is  not  the  depart- 
ment, that  is  confessedly  competent  to  these  tremendous  exertions 
of  power,  competent  to  judge  and  to  exact  a  particular  employ- 
ment or  trade  to  be  inimical  to  the  public  welfare,  and  so  to 
prohil)it  it  ?  Who  shall  judge  what  is  inimical  to  society,  and 
so  prohibit  it?  In  the  nature  of  things,  the  power  must  be  a 
unit :  it  cannot  be  in  several  departments  of  the  government. 
Nor  can  it  be  contingent,  to  be  exercised  in  the  first  instance  by 
one,  the  judgment  and  the  statute  to  derive  their  authority  from 
the  subsequent  concurrence  of  another  department.  It  cannot 
be  a  compact  between  several  departments.  What  is  spoken 
must  be  by  one,  and  with  the  potential  authority  of  law,  from 
the  beginning.  Nor  is  it  an  objection,  that  the  legislature  may 
err.  May  not  the  executive  or  judicial  department  err?  A 
great  temporary  evil  may  result  from  legislative  error,  but  that 
may  always  result  from  a  mistake  in  the  policy  of  laws.  Nor 
could  the  poAver  be  more  safely  lodged.  It  is  exerted  by  the 
immediate  representatives  of  the  people,  elected  for  a  short  term. 
The  objection  to  the  power  of  prohibition  rests  upon  the  nar- 
rowest and  fi*ailest  basis.  It  is  said,  tliat  if  four  judges  of  the 
suprenue  court,  or  eight  judges  of  the  court  of  appeals,  should 
concur  with  the  legislature  that  prohibition  is  required  by 
sound  policy,  the  act  will  be  adjudged  valid.  But  what  if  they 
whose  opinion  has  no  authority  as  to  the  policy  of  laws,  should 
not  concur,  how  is  that  to  make  the  law  void  ?  Is  the  con- 
stitutionality of  laws  to  be  tested  by  the  certainties  of  fixed 
principles  and  a  written  constitution,  or  by  loose  and  uncertain 
opinions  (which  are  forever  fluctuating)  as  to  the  policy,  the  wis- 
dom or  the  necessity  of  laws?  It  is  for  those  who  assert  the 
power  of  the  judiciary  to  pass  upon  the  necessity  of  a  police  reg- 
ulation, to  define  the  principle  upon  which  the  power  is  to  1)6 
exerted  and  the  limit  to  be  set  to  its  exercise.  May  the  power 
he  exerted  upon  all  statutes  that  rest  upon  opinion?  What  stat- 
ute may  not  be  torn  from  the  book  ?  Or  is  the  judicial  power 
limited  to  a  clear  case  of  excessive  legislation?  What  is  a  clear 
case?  By  what  rule  is  it  to  be  tested?  Or  is  it  said,  that  the 
power  is  only  to  be  exerted  against  unnecessary  laws  ?     But 


DUTCHESS— JULY,  1855.  [§3 


The  People  v.  Toj'nbee. 


who  is  to  judge  of  their  necessity  ?  Or  if  the  degree  of  the  evil 
aimed  at,  or  the  degree  of  the  necessity  for  the  prohibition,  or 
the  degree  of  the  penal  infliction  is  to  determine  the  fate  of  the 
law,  what  delicate  and  accurate  instrument  is  to  be  used  to  de- 
termine the  dftgree  ?  In  what  degree  are  gambling  houses 
and  koiises  tf  prostitution  evils  ?  In  what  degree  is  usury 
injurious  ?  In  what  degree  are  lotteries  an  evil  ?  In  what  de- 
gree is  the  use  of  opium  injurious,  so  as  to  make  a  prohibition 
of  an  open  and  tempting  traflSc  in  it  improper?  It  is  exclusively 
for  the  legislature  to  answer  these,  and  all  similar  questions. 

Now,  to  apply  the  argument.  The  respondent  claims  that 
the  act  in  question  is  valid,  upon  the  principles  above  stated. 
That  alcohol  may  be  so  used  as  to  destroy  body  and  mind  will 
not  be  denied.  Nor  will  it  be  denied  that  it  often  is  so  used. 
Nor  will  it  be  denied  that  facilities  for  procuring  it,  and  the 
temptations  to  its  use  by  an  open  and  free  traffic,  greatly  tend 
to  such  excessive  use.  Nor  will  it  be  denied,  that  the  habits 
thereby  formed,  while  destructive  to  the  individual,  are  greatly 
injurious  to  society,  destroj'ing  industry  and  thrift,  preventing 
accumulation  and  use,  and  impairing  material  interests.  Nor 
will  it  be  denied  that  these  very  common  results  of  an  excessive 
use,  engendered  by  the  temptations  and  facilities  of  an  open 
traffic,  produce  more  poverty  to  be  supported  in  poor-houses,  and 
more  crime  to  be  repelled  by  police  establishments  and  restrained 
by  prisons,  than  all  other  personal  vices  together.  In  the  main, 
the  other  social  vices  being  the  progeny  of  this  gigantic  and 
prolific  vice.  However  these  facts  may  be  presented,  (in  a  cold 
and  colorless  medium,  or  in  a  highly  colored  rhetorical  state- 
ment,) their  general  truth  will  not  be  disputed  by  candid  men. 

Now,  the  legislature,  reasoning  upon  these  facts,  say,  if  we 
have  the  power  to  burden  those  who  do  not  profit  by  the  traffic  in 
liquor,  by  heavy  taxes  to  support  the  pauperism  and  guard  the 
crime  the  traffic  produces,  Ave  also  have  the  power  to  relieve  from 
those  oppressive  and  unjust  burdens  by  enacting  laws  which 
will  remove  the  cause  of  them.  It  is  respectfully  submitted, 
that  laws  against  luxuries,  laws  against  employments  and  acts 
that  tend  to   vicious  habits,  and  to  make  the   citizen,  and  the 


1^4  CASES  IN  THE  SLTKEME  COr^lT. 

The  People  v.  Toynbee, 

State,  poorer  and  weaker,  are  based  on  considerations  of  pclicp 
that  l)elong  to  political  economists  and  statesmen,  and  not  on 
questions  of  constitutional  power  that  belong  to  judges  and 
courts  of  justice.  '  _? 

As  to  this  particular  law,  it  is  conceived  t\i§^  its  whole  pro- 
hibitory principle  was  involved  in  the  "  No  licenaw"  act  of  1846, 
{see  5  Detiio,  70,)  and  in  the  fifteen  gallon  laws  of  Massachusetts 
and  Rhode  Island  that  were  before  the  supreme  court  in  the 
license  cases  in  5  Howard.  Under  both  laAvs,  it  often  happened 
that  no  license  would  be  granted  ;  and  practically,  an  inability 
to  buy  or  sell  less  than  the  minimum  quantity  that  could  be 
lawfully  sold  was  an  inability  to  buy  or  sell  at  all ;  as  much  so  as 
now,  where  "the  limit  is  to  the  fifteen  gallon  package  of  original 
importation.  In  the  license  cases,  the  right  of  total  prohibition 
was  expressly  declared  by  the  judges. 

Taney,  Ch.  J.,  (5  Howard-  577.)  "And  if  any  state  deems 
the  retail  and  internal  traffic  in  ardent  spirits  injurious  to  its 
citizens  and  calculated  to  produce  idleness,  vice  or  debauchery, 
I  see  nothing  in  the  const itntioji  of  the  United  States  to  pre- 
vent it  from  regulating  and  restraining  the  traffic,  or  from  pro- 
hibiting it  altogether,  if  it  thinks  proper.  Of  the  wisdom  of 
this  policy,  it  is  vot  my  province  or  my  purpose  to  speak.  Upon 
that  subject  each  state  must  decide  for  itself  I  speak  only  of 
the  restrictions  which  the  constitution  and  laws  of  the  United 
States  have  imposed  upon  the  states." 

McLean,  J.,  (page  591.)  "This  [the  limit  as  to  quantity  that 
may  he  soldj  is  altogether  arbitrary,  and  must  depend  upon  the 
discretion  of  the  law-making  power,  the  same  discretion  that 
imposes  a  tax,  defines  offenses  and  prescribes  their  punishment, 
and  which  controls  the  internal  policy  of  the  state.  *  *  *  In  all 
matters  of  government,  and  especially  of  police,  a  wide  discre- 
tion is  necessary.  It  is  not  susceptible  of  an  exact  limitation, 
but  must  be  exercised  under  the  changing  exigencies  of  society.'' 

Grier,  J.,  (631,  2.)  "  It  is  not  necessary  for  the  sake  of  just- 
ifying the  state  legislation  now  under  consideration  to  array  the 
appalling  statistics  of  misery,  pauperism  and  crime  which  have 
their  origin  in  the  use  or  abuse  of  ardent  spirits.     The  police 


DUTCHESS-  JULY,  1 855.  ]  85 


The  People  v.  Toynbee. 


power,  which  is  exclusively  in  the  states,  is  alone  competent  to 
the  correction  of  these  great  evils,  and  all  measures  of  restraint 
or  prohibition  necessary  to  effect  the  purpose  are  within  the 
scope  of  that  authority."  It  may  be  said  that  these  expressions 
■were  obiter.  Whether  they  were  so  or  not  depends  on  this..  If 
it  is  claimed  that  such  laws  are  contrary  to  the  first  principles 
of  political  society,  (i.  e.  of  republican  institutions,)  the  court  had 
cognizance  of  the  very  question,  under  article  four,  section  four 
of  the  federal  constitution  ;  and  in  that  view,  these  license  cases 
are  expressly  upon  the  point,  and  a  decisive  authority  in  favor 
of  the  validity  of  the  statute.  If,  on  the  contrary,  it  is  not 
claimed  that  the  act  violates  the  principle  of  republican  institu- 
tions, the  whole  ground  on  which  a  vast  superstructure  of  argu- 
ment was  attempted  to  be  raised  is  surrendered.  Indeed  the 
power  of  the  legislature  to  prohibit  has  hardly  been  seriously 
questioned  in  any  case.  And  even  where  counsel  have  made 
the  point,  it  has  hardly  had  the  respect  of  a  passing  notice  in 
the  judgment  pronounced  by  the  court.  (*S'ee  1  Gray^s  Mass. 
Rep.  1.) 

The  case  of  Austin  v.  JS'tate,  (10  Miss.  R.  194,)  is  deemed  a 
direct  decision  in  favor  of  the  power.  For  the  extent  of  the 
power  to  make  police  regulations,  see  the  above  cases,  and  also 
Miln  V.  New  York,  (11  Peters,  139.) 

Brown,  J.  Philip  Berberrich,  the  defendant  in  one  of  these 
actions,  was  arrested  under  the  act  of  the  9th  of  April,  1855, 
entitled  •'  An  act  for  the  prevention  of  intemperance,  pauperism 
and  crime,"  charged  with  having  in  his  possession,  with  intent 
to  sell  and  with  having  sold,  intoxicating  liquor  called  lager  bier. 
He  was  brought  before  E.  Q.  Eldridge,  Esq.,  county  judge  of 
Dutchess  county,  and  upon  a  trial  by  a  jury,  was  found  guilty. 
At  this  stage,  and  before  sentence,  the  proceedings  were  re- 
moved into  this  court  by  certiorari. 

Thomas  Toynbee,  the  defendant  in  the  other  action,  was  also 
arrested  under  the  same  act,  without  warrant,  by  John  Mathews, 
a  police  oflBcer,  and  brought  before  D.  K.  Smith,  a  police  justice 
of  the  city  of  Brooklyn,  and  there  charged  with  being  in  the 

Vol.  XX.  24 


J  ^Q  CASES  IN  TUE  SUPREME  COURT. 

The  People  v.  Toynbee. 

act  of  selling  intoxicating  liquor,  to  wit :  one  glass  of  brandy  ; 
and  also,  Avith  having  in  his  possession  other  intoxicating  liquor, 
Do  wit :  champaigne  wine^  with  intent  to  sell  the  same.  The 
wine  was  seized  by  the  oflBcer.  At  the  trial  before  the  justice, 
without  a  jury,  sitting  as  a  court  of  special  sessions,  Toynbee 
was  found  guilty,  and  sentenced  to  pay  a  fine  of  $50,  with 
$5.87  costs,  and  to  be  committed  until  such  fine  and  costs  be 
paid,  for  a  period  not  exceeding  56  days.  It  was  also  adjudged 
that  the  liquor  seized  be  forfeited,  and  a  warrant  issued  for  its 
destruction.  The  defendant  appealed  to  the  general  term  of  this 
court,  and  thus  we  have  the  principal  questions  which  arise 
upon  the  construction  of  the  act,  its  force  and  obligation  as  a 
law,  presented  for  the  consideration  and  judgment  of  this  court. 
The  object  to  be  efi"ected  by  the  statute  under  which  these 
proceedings  are  had,  must  be  ascertained  from  an  examination 
of  its  various  sections,  26  in  number.  If  its  office  is  one  of 
mere  regulation — to  prescribe  by  whom  and  to  whom  and  at 
what  places  liquors  in  certain  quantities  may  be  sold — then  it 
does  no  more  than  the  excise  law,  which  it  is  thought  to  supersede ; 
and  although  prejudicial  to  existing  interests,  and  may  subject 
certain  classes  to  some  privations  and  inconveniences,  it  is  never- 
theless a  law  of  binding  obligation,  which  the  people  must  obey, 
and  the  tribunals  of  justice  enforce.  If,  however,  its  office  and 
purposeis  greater  and  more  comprehensive  than  mere  regulation, 
if  it  aims  at  prohibition — prohibition  of  sales  as  well  as  of  general 
and  ordinary  uses,  to  an  extent  which  deprives  the  subject  of 
the  law  of  its  value,  and  strikes  down  the  vast  and  varied  in- 
terests concerned  in  its  importation,  sale  and  production ;  if  it 
provides  for  the  seizure,  forfeiture  and  destruction  of  an  article 
or  thing,  the  pi'oduct  of  human  industry,  hitherto  invested  with 
the  attributes  of  property,  solely  because  its  producers  or  own- 
ers design  to  make  it  the  subject  of  sale  and  transfer,  to  deal 
in  it  and  with  it  as  property,  and  apply  it  to  general  uses,  then  the 
question  assumes  a  very  different  character,  and  we  are  brought 
to  inquii'e  whether  an  act  pregnant  with  such  consequences,  and 
armed  with  such  unusual  and  dangerous  powers,  is  really  within 
the  sphere  of  legislative  authority.     It  is  just  to  observe,  that 


DUTCnESS— JULY,  1855.  ]87 


The  People  v.  Toynbee. 


while  sales  by  persons  generally  and  for  general  uses  are  ex- 
pressly forbidden,  there  is  no  positive  interdict  against  its  gen- 
eral use  when  lawfully  acquired.  Yet,  as  there  can  be  no 
lawful  sales  after  the  act  takes  effect,  except  by  the  authorized 
fenders  for  certain  special  purposes — and  as  the  act  is  careful 
to  impose  one  of  its  penalties  upon  purchasers  from  -authorized 
venders,  under  a  false  representation  that  it  is  designed  for  an 
authorized  use — it  seems  clear  that  the  intent  was  to  interdict 
the  general  use. 

Section  1  forbids  the  sale,  and  the  keeping  for  sale,  or  with 
the  intent  to  sell,  except  in  the  cases  enumerated  in  the  subse- 
quent sections,  and  also,  in  the  case  mentioned  in  the  last  clause 
of  the  same  section,  which  clause  is  supposed  to  be  of  doubt- 
ful import.  The  sales  excepted  from  the  prohibition  of  the  first 
section,  other  than  those  in  the  latter  clause,  are  sales  to  author- 
ized venders,  and  sales  by  them  for  mechanical,  chemical  and 
medicinal  purposes,  and  of  wine  for  sacramental  uses  :  also,  sales 
of  cider  in  quantities  not  less  than  ten  gallons  ;  sales  of  alcohol 
by  manufacturers  ;  of  wine  from  grapes  grown  by  the  seller, 
and  of  foreign  liquor  in  the  original  packages  to  authorized 
venders.  Section  4  declares  offenses  against  the  act  misde- 
meanors, and'  provides  for  their  punishment  by  fines  and  im- 
prisonment. Section  5  designates  the  ofiicers  who  shall  have 
cognizance  of  such  offenses,  and  prescribes  the  form  of  the  pro- 
ceedings and  of  the  trial.  Sections  6  and  7  contain  what  are 
called  the  search  and  seizure  clause  ;  and  section  10  provides 
for  the  condemnation  and  destruction  of  the  liquor.  Section 
12  authorizes  sheriffs,  marshals,  constables  and  policemen  to 
serve  the  process,, arrest  persons  in  the  act  of  selling,  and  to 
seize  without  warrant  liquor  kept  against  the  provisions  of  the 
act.  The  owner  may  interpose  a  claim  to  the  liquor  seized  pur- 
suant to  the  provisions  of  section  7,  but  he  must  first  purge 
himself  under  oath  of  any  design  to  disobey  or  evade  the  law, 
before  he  can  be  noticed  or  heard.  Section  16  deprives  the 
owner  of  his  right  of  action  to  recover  the  value  of  any  liquor 
Bold  to  a  purchaser,  or  taken,  detained  or  destroyed  by  a  wrong- 
doer, unless  he  shall  prove  that  such  liquor  was  sold  according 


J8S  CASES  IN  THE  SUPREME  COURT, 

'i'lie  People  V.  Toynbee. 

to  the  provisions  of  the  act.  or  Avas  hiwfuUy  kept  and  owned  by 
him.  And  section  17  declares,  that  upon  the  trial  of  any  action 
to  enforce  the  penalties  and  forfeitures,  proof  of  a  delivery  shall 
be  deemed  evidence  of  sale,  and  proof  of  sale  shall  be  sufficient 
to  sustain  the  averment  of  unlawful  sale.  Section  25  declares 
all  liquors  kept  in  violation  of  any  of  the  provisions  of  the  act 
a  public  nuisance.  The  abatement  of  public  nuisances  is  one 
of  the  remedies  by  the  act  of  the  part}'  which  the  law  concedes 
to  any  person  injured,  and  he  may  proceed  to  the  removal  and 
destruction  of  the  nuisance  w-ithout  the  process  or  judgment  of  any 
court.  (3  Black.  Com.  5.)  So  that  if  this  clause  is  to  have 
any  effect,  it  can  be  none  other  than  to  invite  and  justify  dep- 
redations upon  the  proscribed  article.  These  provisions  are 
vindictive.  They  are  novel  and  unusual.  If  Ave  except  some 
few  states  of  the  confederacy,  Avho  have  recently  entered  upon 
a  similar  course  of  legislation,  they  have  never  before  found  a 
place  in  the  written  code  of  a  civilized  country.  They  are  de- 
signed to  Avork  a  forfeiture  of  goods — a  deprivation  of  liberty 
and  property — by  means  unknoAvn  to  the  common  laAV.  They 
set  aside  the  just  and  humane  rules  of  evidence,  approved  by 
time  and  sanctioned  by  sound  philosophy.  They  assume  a  de- 
livery to  be  a  sale,  and  proof  of  a  sale  sufficient  U>  sustain  an 
averment  of  unhuvful  sale.  And  they  refuse  to  notice  or  hear 
a  citizen  in  defense  of  his  OAvn  propert}?-,  unless  he  first  submit 
to  take  the  oath  demanded  by  the  act,  and  disclose  the  facts 
upon  Avhich  he  relies  to  establish  his  innocence.  It  aAvakens 
strange  emotions  in  this  age  of  progress  and  improvement,  to 
behold  enactments  like  these  embodied  amongst  the  Avritten 
hiAvs  of  a  people  distinguished  for  their  moderation,  their  moral 
excellence,  their  love  of  justice,  and  their  ready  perception  of 
tlie  distinction  betAveen  right  and  Avrong  ;  a  people  of  Anglo- 
Saxon  lineage,  versed  in  the  jurisprudence  of  Coke  and  Black- 
stone,  and  Kent  and  Story,  and  Avho  are  proud  to  trace  the  funda- 
mental principles  of  their  goverment  upward,  through  the 
revolutionary  struggles  of  1776  and  1688,  the  conflicts  and 
trials  of  the  great  rebellion,  back  to  the  conferences  of  the  bar- 
ons at  Runnymede.     Impressed  by  the  novel  and  extraordinary 


DUTCHESS— JULY,  1855.  \S[i 


The  People  v.  Toynbee. 


features  of  the  act,  and  the  doubts  suggested  by  its  perusal,  1 
turn  to  the  organic  law  as  the  true  test  of  legislative  power, 
and  regardless  for  the  time  of  the  subordinate  questions  involved 
in  the  controversy,  proceed  to  inquire  whether  its  provisions 
do  not  fall  within  the  prohibitions  of  the  constitution.  I  shall 
assume  for  all  the  purposes  of  this  argument,  that  the  prohibi- 
tions of  the  act  extend  as  well  to  liquors  which  are  the  growth 
and  manufacture  of  foreign  countries,  as  to  those  which  are  of 
domestic  origin.  Indeed,  if  we  look  at  its  title,  to  which 
resort  may  be  had  to  remove  ambiguities  when  the  in- 
tention of  the  lawgiver  is  not  plain,  and  read  the  closing  sen- 
tence of  section  1,  which  is  thought  to  exclude  foreign  liquors, 
in  connection  with  that  part  of  section  22  which  declares  that 
it  shall  not  be  construed  ''to  prevent  the  importer  of  foreign 
liquor  from  keeping  or  selling  the  same  to  any  person  author- 
ized by  the  act  to  sell  such  liquors,"  the  intention  of  the  legis- 
lature to  include  both  kinds,  can  hardly  admit  of  a  doubt. 
The  exception  upon  which  the  uncertainty  arises  proceeded, 
doubtless,  from  a  desire  that  the  law  should  conform  to  the 
decision  in  Brown  v.  The  State  of  Maryland,  referred  to  here- 
after. And  the  obscurity  and  want  of  precision  in  the  language' 
employed  must,  upon  the  usual  rules  of  construction,  yield  to 
the  intention,  when  that  can  be  ascertained  from  an  examina- 
tion of  the  law  itself. 

In  neither  of  the  cases  under  consideration,  were  the  defend- 
ants impleaded  or  brought  to  trial  upon  the  indictment  of  a 
grand  jury.  Indeed,  the  law  contemplates  no  preliminary  in- 
quiry by  the  grand  inquest.  The  counsel  for  the  defendants 
insist  that  in  this  respect  it  is  in  conflict  with  that  part  of  sec. 
6  of  art.  1  of  the  constitution,  which  declares  that  "  no  person 
shall  be  held  to  answer  for  a  capital  or  oth*erwise  infamous  crime, 
(except,  <fcc.)  unless  on  presentment  or  indictment  of  a  grand 
jui-y."  This  involves  an  inquiry  into  the  character  of  the 
crime  created  by  the  act.  Is  it  an  infamous  crime  ?  Offenses 
which  rendered  the  perpetrator  infamous  at  the  common  law, 
were  treason,  felony,  and  the  crimen  falsi.  It  is  not  easy  to  de- 
fine the  meaning  and  extent  of  the  latter  term,  with  certainty, 


1  90  CASES  IN  THE  SUPEEME  COURT. 

The  People  v.  Toynbee. 

It  not  only  involved  falsehood,  but  offenses  -whicli  injuriously 
affected  the  administration  of  justice.  It  was  the  infamy  of 
the  crime  and  not  the  nature  of  the  punishment,  which  con- 
stituted the  crimen  falsi.  Thus  a  conviction  for  libel,  or  for 
seditious  words,  or  for  keeping  a  gaming-house,  did  not  render 
a  man  infamous.  (  Whartoni's  Crim.  Laiv,  354.  1  Rtis.  on 
Crimes,  45.  1  Phil.  Ev.  28.  Barker  v.  The  People,  20 
John.  457.  Peake's  Ev.  126.)  The  present  constitution  was 
adopted  in  1846.  At  that  time  the  term  infamous  crime  was 
and  still  is  defined,  in  the  2d  vol.  revised  statutes,  587,  §  31,  to 
include  every  offense  punishable  with  death  or  by  imprison- 
ment in  the  state  prison,  and  no  other.  Such  is  also  the  statu- 
tory definition  of  felony.  The  framers  of  the  constitution  must 
have  understood  and  intended  that  others  should  understand  the 
term  in  the  legal  sense  then  given  to  it.  And  it  does  not  em- 
brace the  offense  created  by  the  act  under  consideration.  It  is 
not.  therefore,  a  valid  objection,  that  the  defendants  were  im- 
pleaded and  put  upon  their  trial  without  the  indictment  of  the 
grand  jury. 

We  have  already  seen  that  the  object  of  the  law  is  prohibi- 
tion. For  general  and  ordinary  uses — for  all  but  a  few  special 
purposes — liquors  having  intoxicating  properties  are  to  be  ban- 
ished from  society,  and  neither  bought  nor  sold.  The  trades 
and  employments  connected  with  their  importation,  manufacture 
and  distribution,  are  to  be  suspended  or  put  down,  and  the  in- 
terests which  supply  such  trades  and  employments  Avith  capital, 
raw  material,  labor  and  means  of  transport,  are  to  find  other 
fields  of  enterprise,  or  be  put  down  with  them.  This  brings 
me  to  consider  the  principal  question  discussed  upon  the  argu- 
ment, which  is  this  :  Does  the  legitimate  authority  of  the  legis- 
lature extend  to  th(?  enactment  of  laws  prohibitory  of  the 
common  and  ordinary  use  of  property  ?  Can  this  department 
of  the  government,  in  the  execution  of  the  trusts  confided  to  it, 
declare  by  statute  an  article  or  thing,  the  product  of  human 
industry  or  the  creation  of  human  skill,  long  recognized  as 
property,  and  of  all  but  universal  use,  and  perfectly  inoffensive 
in  itself,  to  be  a  public  nuisance,  and  tlius  authorize  and  jus- 


DUTCHESS— JULY,  1855.  19] 


The  People  v.  Toynbee. 


tify  its  destruction  ?  It  is  worth  while,  before  we  proceed  fur- 
ther, to  inquire  what  the  proscribed  article  or  thing  is — to 
consider  its  qualities  and  uses,  and  whether  it  is  invested  with 
the  attributes  of  property,  so  as  to  entitle  it  to  the  protection 
of  the  constitution. 

The  taste  for  intoxicating  drinks  is  thought  to  be  an  instinct 
of  our  nature — an  operation  of  the  principle  of  organized  life, 
and  not  an  artificial  appetite  or  desire  peculiar  to  races  or  tribes, 
and  induced  by  habit,  or  climate,  or  other  external  influences. 
History  and  tradition  corroborate  the  results  of  chemical  and 
physiological  investigation.  With  the  earliest  Hebrews,  the 
most  ancient  Egyptians — with  the  refined  and  intellectual 
Greeks,  and  the  robust  and  resolute  Romans — wine  was  the 
favorite  beverage,  if  not  a  part  of  the  customary  food.  Among 
the  nations  whose  empires  were  upon  the  shores  of  the  Medi- 
terranean and  its  adjacent  seas,  long  before  the  Christian  era, 
the  fruit  of  the  vine  and  the  olive,  together  with  the  cereal 
grains,  were  the  staple  products  of  agriculture  and  the  prin- 
cipal articles  of  trade  and  commerce.  "  Savage  and  civilized 
tribes,  near  and  remote — the  houseless  barbarian  wanderer,  the 
settled  peasant  and  the  skilled  citizen — all  have  found,  without 
intercommunion,  through  some  common  and  instinctive  process, 
the  art  of  preparing  fermented  drinks,  and  of  procuring  for 
themselves  the  enjoyments  and  miseries  of  intoxication;  The 
juice  of  the  cocoa-nut  tree  yields  its  toddy  wherever  this  valu- 
able plant  can  be  made  to  grow.  Another  palm  aftbrds  a  fer- 
mented wine  on  the  Andean  slopes  of  Chili  ^  the  sugar  palm 
intoxicates  in  the  Indian  Archipelago  and  among  the  Moluccas 
and  Philippines  ;  while  the  best  palm  wine  of  all  is  prepared 
from  the  sap  of  the  oil-palms  of  the  African  coast.  In  Mexico 
the  American  aloe  gave  its  much  loved  pulque,  and  probably, 
also,  its  ardent  brandy,  long  before  Cortez  invaded  the  ancient 
monarchy  of  the  Aztecs.  Fruits  supply  the  cider,  the  perry  and 
the  wine  of  many  civilized  regions  ;  barley  and  the  cereal  grains, 
the  beer  and  brandy  of  others ;  while  the  milk  of  their  breed- 
ing mares  supplies  at  will  to  the  wandering  Tartar,  either  a 
mild,  exhilarating  drink,    or    an    ardently   intoxicating    spirit. 


1  92  CASES  IN  THE  SUPREME  COUPwT. 

The  People  v.  Toynbee. 

And  to  our  wonder  at  the  wide  prevalence  of  this  tasto,  anc 
our  surprise  at  the  success  with  which  in  so  many  different 
wnys  mankind  has  been  able  to  gratify  it,  the  chemist  adds  a 
new  wonder  and  surprise,  when  he  tells  us  that,  as  in  the  case 
of  his  food,  so  in  preparing  his  intoxicating  drinks,  man  has 
every  Avhere  c«me  to  the  same  result.  His  fermented  liquors, 
wherever  and  from  whatever  substances  prepared,  all  contain  the 
same  exciting  alcohol,  producing  every  where,  upon  every  hu- 
man being,  the  same  exhilarating  effects."  The  wines  of  France, 
Italy  and  Spain,  the  beer  of  the  German  states  and  the  ale  and 
porter  of  the  British  Islands,  enter  largely  into  the  domestic  con- 
sumption of  the  inhabitants  of  those  countries,  as  a  part  of  their 
dailyfood.  With  our  own  citizens  the  use  of  fermented  liquors,  in 
some  form  or  other,  is  all  but  universal.  Either  as  a  beverage  or 
in  the  preparation  of  their  food,  few  families  are  entirely  without 
it.  .  Should  these  facts  suggest  the  probable  result  of  a  move- 
ment to  quench  an  appetite  so  prevalent  and  so  deeply  seated, 
by  interdicting  the  use  of  the  means  which  a  wise  and  benefi- 
cent Providence  has  every  where  furnished  for  its  gratification, 
they  also  show  that  Avhenever  and  wherever  man  rises  above 
the  savage  condition,  and  begins  to  exhibit  the  rudiments 
of  civilization,  intoxicating  drinks,  and  the  fruits  and  plants 
and  grains  from  which  they  are  expressed  or  extracted,  are 
among  the  first  things  which  he  separates  from  the  common 
stores  of  nature,  appropriates  to  individual  use,  and  impresses 
with  character  and  attributes  of  property.  Chemical  and  phys- 
iological science  n^ust  determine  whether  alcohol,  the  essential 
element  of  intoxicating  liquors,  is  food  for  the  invigoration,  or 
poison  for  the  destruction,  of  the  human  system.  The  law  is 
only  concerned  to  know  whether  they  fall  within  the  catalogue 
of  things  wliich  it  recognizes  as  propert3^  I  find  no  definition 
of  property  that  does  not  apply  to  intoxicating  liquor.  It  has 
been  separated  from  the  common:  stock  of  nature  for  private 
use.  It  is  that  over  which  man  may  exercise  absolute  dominion, 
to  the  exclusion  of  every  other  person.  By  many  it  is  regard- 
ed as  an  article  of  diet ;  by  fill,  as  one  of  trade.  It  is  bought 
and  sold,  lost  and   acquired,  like  other  property.     The  law  in 


DUTCHESS— JULY,  1855.  J  93 


The  People  v.  Toynbee. 


question  treats  it  as  property — authorizes  its  sale  under  certain 
limitations  and  for  certain  prescribed  uses.  And  when  it 
speaks  of  its  forfeiture,  it  means  a  forfeiture  of  the  right  of 
property.  In  every  sense  of  the  term  it  is  property,  endowed 
with  the  same  rights  and  subject  to  the  same  measure  of  con- 
trol as  other  property,  and  no  more.  • 

The  learned  counsel  for  the  people,  in  the  case  against  Toyn- 
bee, insists  that  the  legislative  department  of  the  state,  being 
founded  upon  the  model  of  the  English  parliament,  has  power 
to  declare  and  limit  the  uses  to  which  property  may  be  applied, 
and  when  it  shall  cease  to  be  property.  This  power,  he  ar- 
gues, results,  1.  From  the  express  grant  of  the  constitution ;: 
2.  From  the  general  illimitable  nature  of  legislative  power  re- 
quired for  the  ends  of  society  ;  3.  From  being  co-extensive  with 
the  law-making  power  in  a  democracy  ;  and,  4.  From  the  fact 
that  discretion,  legislative  and  judicial,  is  in  its  nature  exclu- 
sive and  subject  to  no  control.  This,  doubtless,  is  a  true  expo^- 
sition  of  the  power  of  the  parliament  of  Great  Britain,  which 
is  said  to  be  "  so  trancendent  and  absolute  that  it  cannot  be 
confined,  either  for  causes  or  person,  within  any  bounds."  So 
thought  Lord  Coke.  (4  Inst.  36,  and  1  Black.  Com.  140.) 
Such  also  is  the  opinion  of  Chancellor  Kent,  (1  KeiiVs  Com. 
448,)  in  his  remarks  upon  Coke's  expression  in  Bonham's  case, 
and  upon  that  of  Lord  Hobart,  in  Day  v.  Savage,  and  of  Lord 
Holt,  in  The  City  of  London  v.  Wood.  Names,  eminent  as 
jurists  and  statesmen,  are  not  wanting,  who  maintain  that  there 
are  limitations  upon  legislative  power  not  written  in  the  consti- 
tution, which  are  implied  from  the  nature  of  popular  sovereignty 
and  representative  government.  I  decline  to  enter  that  field  of 
inquiry,  because  for'  the  present  purposes,  and  indeed  for  any 
purpose  designed  to  secure  property  and  liberty  and  life  from 
aggression  and  misrule,  the  written  limitations  will  be  found 
amply  sufficient,  if  expounded  and  applied  in  :f  liberal  and  res- 
olute spirit.  They  come  down  to  us  from  magna  charta,  and 
are  sanctioned  and  approved  by  the  wisdom  and  experience  of 
near  seven  hundred  years,  and  under  our  system  are  intended 
to  save  absolute   inherent  rights   from   the  force  of  legislative 

Vol.  XX.  25 


194  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toyiibcc. 

acts  which  interrupt  their  enjoyment  or  impair  their  value, 
Among  the  absolute  inherent  rights  ofpersons,  Mr.  Blackstone 
(1  Co?7i.  138)  enumerates  the  right  of  property,  which  "  consist? 
(he  says)  in  the  free  use,  enjoyment  and  disposal  of  all  his  ac- 
quisitions, without  any  control  or  diminution  save  only  bi/  the 
UiiDS  of  the  laml.  And  by  a  variety  of  ancient  statutes  it  is 
enacted  that  no  man's  lands  or  goods  shall  be  seized  into  the 
king's  hands  against  the  great  charter  and  the  law  of  the  land  ; 
and  that  no  man  shall  be  disinherited  nor  put  out  of  his  fran- 
chises or  freehold,  unless  he  be  duly  brought  to  answer  and 
be  forejudged  by  course  of  law."  The  words  "by  the  laws  of 
the  land,*'  and  "  by  course  of  law,"  here  referred  to,  and  the 
words  '•  due  process  of  law,"  found  in  the  6th  section  of  the  1st 
article  of  the  constitution,  are  s^'^nonymous,  and  have  the  same 
legal  import  and  effect.  We  shall  presently  see  Avhat  this  is. 
England  has  no  written  constitution,  and  therefore  parliament 
is  snid  to  be  so  trancendent  in  its  authority.  The  provisions 
of  the  great  charter  and  the  acts  of  later  times,  for  the  protec- 
tion of  life,  lil)erty  and  property,  are  statutory  regulations, 
which  parliament  may  repeal  or  modify  at  pleasure.  They  are 
limitations  upon  the  power  of  the  crown,  and  not  upon  that  of 
parliament.  The  masses  in  Great  Britain  have  never  yet  at- 
tained to  the  consequence  and  dignity  of  a  contest  for  their 
absolute  inherent  rights,  except  through  the  legislative  and  the 
judicial  branches.  It  is  a  historical  truth,  that  the  struggle 
there  has  constantly  been  to  put  the  real  or  pretended  preroga- 
tives of  the  croAvn  under  restraint;  sometimes  by  the  barons, 
as  in  the  time  of  the  great  charter ;  sometimes  by  the  judges, 
SIS  in  the  time  of  Lord  Coke  ;  and  sometimes  by  the  parliament, 
and  especially  the  house  of  commons,  as  in  the  times  of  the 
great  rebellion,  and  the  act  fur  tlie  settlement  of  the  suc- 
cession in  1G88.  We  have  incorporated  the  prohibitions  of  the 
English  statute*  for  the  protection  of  life,  liberty  and  property 
into  our  constitution,  not  as  limitjitions  upon  executive  author- 
ity, but  as  limitations  upon  legislative  power.  The  same  un- 
restrained dominion  over  property  which  the  parliament  and 
people  of  Great  Britain  have  denied  to  the  crown  and  reserved 


DUTCHESS— JULY,  1855.  \  95 


The  People  v.  Toynbee. 


to  parliament,  the    people    of   the    state    of  New  York  have 
denied  to  the  legislature  and  reserved  to  themselves. 

The  latter  clause  of  section  6  of  the  1st  article  of  the  consti- 
tution is  in  these  words :  "  No  person  shall  be  subject  to  be 
twice  put  in  jeopardy  for  the  same  offense  ;  nor  shall  he  be 
compelled,  in  any  criminal  cause,  to  be  a  witness  against  him- 
self; nor  be  deprived  of  life,  liberty  or  property  without  due  pro- 
cess of  law  ;  nor  ^hall  private  property  be  taken  for  public  use 
without  just  compensation."  These  provisions  are  not  to  be 
narrowed  down  by  a  literal  construction.  They  are  to  be  largely 
and  liberally  expounded.  Their  object  is  to  secure  the  enjoy- 
ment of  the  rights  to  which  they  refer,  and  must  have  an  inter- 
pretation which  will  effect  that  object.  The  terms  "life," 
"liberty,"  "property,"  and  "due  process  of  law,"  as  they  stand 
in  the  section,  become  of  vital  consequence  in  giving  it  a  con- 
struction. To  be  of  any  real  value,  they  must  have  a  fixed, 
permanent  signification — one  that  shall  remain  unchanged  by 
circumstances,  or  time,  or  the  caprice  of  those  to-  whom  the  re- 
straining words  of  the  section  may  become  offensive  or  trouble- 
some. The  legislature  may  declare  what  a  particular  term  or 
expression  means  when  used  in  a  statute.  This  is  a  customary 
and  unexceptionable  act.  But  it  cannot  declare  what  the  same 
term  or  expression  means,  and  thus  enbirge  or  restrain  its  signi- 
fication, when  used  in  the  constitution.  It  is  of  no  consequence 
what  the  legislature  think  of  it,  or  what  import  they  attribute 
to  it.  The  real  inquiry  is,  what  did  the  framers  of  tlie  consti- 
tution mean  by  it?  and  what  was  its  known  legal  definition  and 
signification  when  the  constitution  was  adopted  ?  The  word 
"  property  "  must  comprehend  noAv  whatever  it  comprehended 
in  1846.  Any  other  rule  would  place  at  the  absolute  disposal 
of  the  legislature  every  right  intended  to  be  secured  and  con- 
secrated by  the  limitations  I  have  quoted.  The  right  of  prop- 
perty,  as  we  have  seen,  consists  in  the  "  free  use,  enjoyment 
and  disposal."  Its  incidents  are  the  enjoyment,  use  and  the 
power  of  disposition.  How  are  we  to  designate,  classify  or  de- 
fine an  interest  or  an  estate  which  cannot  be  us^d,  enjoyed,  or 
sold  and  tranferred  ?      By  what  words  and  expressions  shall  we 


j  96  CASES  IN  THE  SUPPwEME  COURT. 

The  People  v.  Toynbce. 

impart  to  others  our  i(le<a  of  its  nature  and  qualities  ?  There 
can  be  no  property,  in  the  lethal  and  popuhir  sense  of  the  term, 
where  neither  the  owner,  nor  the  person  who  represents  the 
owner,  has  the  power  of  the  sale  and  disposition.  That  which 
cannot  be  used,  enjoyed  or  sold,  is  not  property  ;  and  to  take 
away  all  or  any  of  these  incidents,  is  in  effect  to  deprive  the 
owner  of  his  right  of  property.  This  is  precisely  what  the  act 
"  for  the  prevention  of  intemperance,  pauperism  and  crime  "  is 
intended  to  accomplish,  and  precisely  what  it  will  accomplish  if 
it  can  be  enforced,  for  it  declares  that  the  subject  to  wliicli  it  re- 
fers shall  neither  be  sold  or  kept  for  sale  or  with  intent  to  be  sold. 
The  statutes  may--and  it  is  their  office  to— prescribe  the  forms  by 
which  sales  may  be  eifected  ;  that  the  title  to  real  property  shall 
only  pass  by  deed,  acknowledged  before  an  officer,  or  attested  by  a 
witness ;  that  personal  estate  shall  only  pass  by  delivery  in 
writing  or  the  paymejit  of  purchase  money  ;  that  poisonous 
drugs,  when  sold,  shall  be  so  labeled.  They  may  also  declare 
that  intoxicating  liquors  shall  not  be  sold  to  minors,  paupers  or 
habitual  drunkards,  or  to  be  drank  in  the  house  of  the  seller,  or 
by  retail  to  be  taken  out  of  the  house,  unless  he  have  a  license 
and  be  of  good  moral  character,  &c.  These  are  mere  acts  of 
regulation  and  conservation,  and  do  not  in  the  least  impair  the 
right  of  property. 

There  is  another  right  incidental  tb  the  right  of  property 
which,  when  abrogated  or  suspended,  tends  to  the  deprivation 
of  property.  That  is,  the  right  \of  action,  the  right  to  the  pro- 
tection of  the  laws,  and  to  redress  by  the  legal  tribunals.  The 
forms  of  action  and  of  legal  proceedings,  the  mode  by  Avhich 
civil  injuries  arc  redressed  and  rights  asserted  and  defended  i.i 
the  courts,  are  classed  as  remedies,  and  are  doubtless  subject 
general!}'  to  legislative  supervision  and  control.  But  when  the 
law-making  power  comes  to  deal  with  the  absolute  inherent 
rights  referred  to  in  the  6th  sec.  of  the  1st  art.  of  the  constitu- 
tion, formes  and  modes  of  proceeding  from  being  mere  remedies 
rise  to  the  dignity  of  rights  which  cannot  be  denied  or  with- 
held. The  principle  is  asserted  b}'  Mr.  Justice  Washington,  in 
Green  v,  Biddle,  (8  Wheat.  1,  75,)  in  the  following  language : 


DUTCHESS— JULY,  1855.  J  97 


The  People  v.  Toynbee. 


'  Nothing  can  be  raoi-e  clear,  upon  principles  of  law  and  reason, 
than  that  a  law  which  denies  to  the  owner  of  land  a  remedy,  &c. 
or  which  clogs  his  recovery  of  possession  by  conditions  and  re- 
strictions tending  to  diminish  the  amount  and  value  of  the 
thing  recovered,  impairs  his  right  to  and  interest  in  the  prop- 
erty. If  there  be  no  remedy  to  recover  the  possession,  the  law 
necessarily  presume?  a  want  of  right  to  it.  If  the  remedy 
afforded  be  qualified  and  restrained  by  conditions  of  any  kind, 
the  right  of  the  owner  may  indeed  subsist  and  be  acknowledged, 
but  it  is  impaired  and  rendered  insecure  according  to  the  nature 
and  the  extent  of  such  restrictions."  Blackstone,  in  his  Commen- 
taries, vol.  1,  p.  55,  says  :  "  The  remedial  part  of  a  law  is  so 
necessary  a  consequence  of  the  two  former  [the  declaratory  anvl 
directory  parts]  that  laws  must  be  very  vague  and  imperfect 
without  it.  For,  in  vain  would  rights  be  declared,  in  vain  di- 
rected to  be  observed,  if  there  were  no  method  of  recovering  or 
asserting  those  rights  when  wrongfully  withheld  or  invaded 
This  is  what  we  mean  properly  when  we  speak  of  the  protec- 
tion of  the  law."  Mr.  Justice  Taney,  in  delivering  his  judgment 
in  Bronson  v.  Kinzie,  (1  How.  311,)  and  applying  this  princi- 
ple to  laws  which  impair  the  obligation  of  contracts,  says : 
"Although  a  new  remedy  may  be  deemed  less  convenient  than 
an  old  one,  and  may,  in  some  degree,  render  the  recovery  of 
debts  more  tardy  and  difficult,  yet  it  will  not  follow  that  the  law  is 
unconstitutional.  Whatever  belongs  merely  to  the  remedy  may 
be  altered  according  to  the  will  of  the  state,  provided  the  alter- 
ation does  not  impair  the  obligation  of  the  contract ;  but  if 
that  effect  is  produced,  it  is  immaterial  whether  it  is  done  by 
acting  on  the  remedy  or  directly  on  the  contract  itself.  In 
either  case  it  is  prohibited  by  the  constitution."  In  Holmes  v. 
Lansing,  (3  Jo/ui.  Cas.  75,)  Chancellor  Kent,  speaking  tho 
judgment  of  this  court,  says  :  "  So  long  as  contracts  were  sub- 
mitted without  legislative  interference  to  the  ordinary  and 
regular  course  of  justice,  and  existing  remedies  were  preserved 
in  substance  and  with  integritj',"  the  constitution  was  not 
violated.  And  Judge  Denio,  in  pronouncing  the  judgment  of 
the  court  of  appeals,  in  Morse  v.  Gould,  (1  Kerruin,  281.)  also 


198 


OASES  m  THE  SUPREME  COCJRT. 


Tlie  People  v.  Toynbee. 


says  :  "  It  is  admitted  that  a  contract  may  be  virtually  impair- 
ed by  a  law  which,  without  acting  directly  upon  its  terms, 
destroys  the  remedy,  or  so  embarrasses  it  that  the  rights  of  the 
creditor  under  the  legal  remedies  when  the  contract  was  made 
are  substantially  defeated."  With  this  necessary  qualification, 
the  jurisdiction  of  the  states  over  the  legal  proceedings  of  the 
courts  is  supreme.  These  authorities  sufficiently  indicate  the 
distinction  between  rights  and  the  remedial  process  of  the  law 
for  their  vindication  when  wrongfully  withheld  or  invaded,  and 
they  also  define  and  mark  the  utmost  verge  and  limit  of  legis- 
lative power  when  applying  remedies  to  absolute  inherent  rights 
wliich  the  people  have  reserved  to  themselves  by  the  limitations 
of  the  constitution.  This  right  of  action  to  redress  and  pro- 
tection, by  the  venders  and  owners  of  intoxicating  liquors,  is 
seriously  impaired — if  not  in  eff"ect  destroyed — by  the  conditions 
imposed  by  the  latter  clause  of  the  16th  section  of  the  act  in 
question. 

Those  provisions  of  this  act  which  I  have  endeavored  to  show 
tend  to  the  deprivation  of  property,  cannot,  by  any  process  of 
reasoning,  be  brought  within  the  meaning  of  the  terms,  "  by 
the  laws  of  the  land,"  and  "by  course  of  law,"  used  in  the 
English  statutes,  or  the  "due  process  of  law,"  of  the  6tb.sec. 
of  art.  Ij  of  the  constitution.  Lord  Coke  says,  that  the  words 
"  by  the  law  of  the  land,"  mean  by  the  course  and  process  of 
law  "by  indictment  or  presentment  of  good  and  lawful  men, 
where  such  deeds  be  done  in  dde  manner  or  by  original  writ  of 
the  common  law."  "  The  law  of  the  land,  in  bills  of  rights, 
does  not  mean  merely  an  act  of  the  legislature,  for  that  would 
abrogate  all  restraints  upon  legislative  authority.  The  clause 
means,  that  the  statute  which  deprives  a  citizen  of  the  rights 
of  person  or  property  without  a  regular  trial  according  to  the 
course  and  usage  of  the  common  law,  would  not  be  the  law  of 
the  land  in  the  sense  of  the  constitution."  {Hoke  v.  Hender' 
son,  4  Dev.  1.)  "  The  words  '  due  process  of  law,'  in  this  place, 
cannot  mean  less  than  a  prosecution  or  suit  instituted  and  con- 
ducted according  to  the  formes  and  solemnities  for  ascertaining 
guilt  or  determining  the  title  to  propert3\     It  will  be  seen  that 


DUTCHESS— JULY,  1855.  ]  99 


The  People  v.  Toynbee. 


fche  same  measure  of  protection  against  legislative  encroach- 
ments is  extended  to  life,  liberty  and  property,  and  if  the  latter 
can  be  taken  without  a  forensic  trial  and  judgment,  then 
there  is  no  security  for  the  others.  If  the  legislature  can  take 
the  property  of  A.  afid  transfer  it  to  B.,  they  can  take  A,  him- 
self and  either  shut  him  upin  prison  or  put  him  to  death.  But 
none  of  these  things  can  be  done  by  mere  legislation.  There 
must  be  due  process  of  law."  This  expressive  language  of  Mr. 
Justice  Bronson,  in  Taylor  v.  Porter,  (4  Hill,  140,)  has  often 
been  quoted  and  cannot  be  too  often  repeated.  It  should  be 
engraven  upon  the  walls  of  the  legislative  chamljers  as  a  per- 
petual memorial  that  there  are  bounds  to  legislative  authority. 
See  also,  the  opinions  of  Judge  Denio  and  of  the  late  Mr. 
Justice  Edwards,  in  Westervelt  v.  Gregg,  (2  Kentan,  202.) 
"  The  prescribed  forms  and  solemnities  for  ascertaining  guilt, 
or  determining  the  title  to  property,"  comprehend  as  well  the 
forms  of  procedure  as  the  legal  presumptions  and  rules  of  evi- 
dence by  which  the  guilt  is  to  be  ascertained  or  the  title  deter- 
mined. These  presumptions  and  rules  are  also  a  part  of  the 
remedial  process  of  the  law,  and  their  alteration  and  modifica- 
tion is  doubtless,  to  a  certain  extent,  within  the  power  of  the 
legislature  ;  but  in  cases  which  affect  the  personal  rights  secured 
by  the  constitution,  the  changes  must  leave  the  right  unimpaired 
and  place  no  material  impediments  or  obstructions  in  the  way 
of  those  who  are  concerned  in  asserting  it.  In  trials  for  crimes 
and  to  enforce  penal  statutes,  the  presumption  of  innocence 
obtains  until  it  is  disproved,  in  all  cases,  and  in  trials  to  redress 
civil  injuries  and  enforce  civil  rights,  the  presumption  of  title  and 
right  is  with  the  defendant  until  it  otherwise  appears,  unless  in  his 
pleadings  he  voluntarily  assumes  the  onus  probandi.  In  pro- 
ceedings which  aim  at  the  deprivation  of  liberty  and  propej-ty 
by  fines  and  forfeitures  and  the  pains  of  impiisonment,  that  is 
not  due  process  of  law  which  reverses  the  wholesome  and  humane 
rules  of  the  common  law  and  substitutes  the  presumption  of 
wrong  ami  guilt  for  that  of  right  and  innocence.  In  this  res- 
pect the  provisions  of  section  17  of  the  act  are  highly  offensive. 
Nor  can  the  force  and  eflSciency  of  the  constitutional  limita- 


200  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toyiihee. 

tions  be  evaded  or  averted  by  the  declaration  of  the  25th  sectloii 
of  the  act,  that  intoxicating  liquors  are  a  public  nuisance.  In  the 
words  of  Chief  Justice  Ruffin,  "  such  a  construction  Avould  abro- 
gate all  restrictions  on  legislative  autliority."  If  a  class  of  citi- 
zens can  be  deprived  of  a  particular  kind  of  property  by  a  legis- 
lative declaration  that  it  is  a  public  tiuisance.  then  another  class 
may  be  deprived  of  liberty  by  a  legislative  act  proscribing  them 
as  malefactors  and  felons.  Grant  this  power  to  the  legislature, 
and  the  limitations  of  the  constitution  are  no  longer  df  any 
value.  Every  kind  of  property  may  be  put  without  the  pale  of 
the  laws  and  the  protection  of  the  courts,  and  exposed  to  seizure 
and  forfeiture  by  a  simple  act  declaring  the  proscribed  article 
to  be  a  public  nuisance.  The  existence  of  such  a  power  is  in- 
consistent with  the  theory  of  a  limited  representative  govern- 
ment, because  it  is  destructive  of  the  ends  which  such  govern- 
ment is  designed  to  accomplish.  The  25th  section  proceeds 
upon  a  misapprehension  of  what  a  nuisance  is.  Common  or 
public  nuisances  are  offenses  "  against  the  public  order  or  eco- 
nomical regimen  of  the  state,  being  either  the  doing  of  a  thing 
to  the  annoyance  of  the  king's  subjects,  or  the  neglecting  to  do 
a  thing  which  the  common  good  requires."  (4  Black.  Com. 
166.)  Impediments  and  obstructions  placed  in  highways  and 
navigable  streams  are  nuisances  per  se,  because  they  interrupt 
the  passage,  and  thereby  annoy  others.  Trades  and  manufac- 
tures of  certain  kinds  become  nuisances  from  the  places  where 
and  the  manner  in  which  they  are  conducted.  Animals,  such 
as  dogs,  swine,  (fcc.  are  not  nuisances  until  they  become  offen- 
sive by  being  suffered  to  run  at  large  or  kept  in  the  vicinity  of 
men's  habitations.  So  an  accumulation  of  vegetables  and  fruits 
in  process  of  decay,  the  flesh  and  offal  of  animals,  gunpowder, 
drains  and  sewers  in  cities  and  populoQs  places,  may  or  may  not 
become  public  nuisances  by  their  localities  and  other  attendant 
circumstances.  The  true  test  is,  that  the  thing,  trade  or  busi- 
ness is  in  some  way  detrimental  to  the  public,  for  the  elemen- 
tary writers  say,  "common  nuisances  are  such  inconvenient 
or  troublesome  offenses  as  annoy  the  whole  community  in  general, 
and  not  some  particular  person."     Common  nuisances  may  be 


DUTCHESS— JULY,  ^855.  20  i 


The  People  v.  Toynbee. 


abated  or  removed  by  the  party  annoyed  or  injured,  who  is  not 
required  to  wait  for  the  slow  progress  of  the  ordinary  forms  of 
justice.  Liquors  that  intoxicate  exhibit  none  of  the  qualities 
■\vhich  constitute  a  common  nuisance.  They  obstruct  no  navi- 
gable rivers,  and  impede  the  passage  of  no  public  highways. 
They  create  no  noise  to  disturb  the  public  tranquillity  and  peace. 
They  exhale  no  oifensive  odors  to  taint  the  air  and  impair  the 
public  health.  Nor  do  they  endanger  the  security  of  persons 
or  of  other  property  l)y  a  tendency  to  ignition  and  explosion. 
In  the  stores  of  the  importer,  the  vaults  of  the  brewer  and  in 
the  cellars  of  the  wine  grower  and  consumer,  they  are  as  harm- 
less as  the  Avood  or  glass  in  which  they  are  enclosed.  He  who 
knows  howlo  enjoy  them  Avith  reason  and  moderation,  or  has 
the  moral  courage  and  self-denial  to  let  them  alone,  may  consid- 
er himself  free  from  annoyance  and  danger.  They  may  be, 
and  doubtless  are,  converted  to  base  uses — uses  which  produce 
"  intemperance,  pauperism  and  crime,"  and,  I  may  add,  moral 
degradation,  and  grief  and  anguish  unspeakable.  And  then  the 
places  where  they  are  thus  used  and  those  concerned  in  pros- 
tituting them  to  such  uses,  fall  clearly  within  the  province  of  legis- 
lative regulation  and  control,  and  the  maxim,  sic  utere  tuo  lit  ali- 
enum  noii,  Imdas,  applies  in  all  its  force.  But  intoxicating  liquors 
cannot  be  deprived  of  the  defenses  with  which  the  constitution 
surrounds  the  property  of  the  citizen,  by  an  act  proscribing  it 
as  a  public  nuisance. 

There  are  some  observations  of  Justices  Taney  and  Wood- 
bury, in  the  opinions  delivered  by  them  in  the  cases  against  the 
states  of  Massachusetts,  Rhode  Island  and  New  Hampshire, 
(5  How.  504,)  which  are  thought  to  favor  the  idea  that  the 
states  may  pass  laws  prohibitory  of  the  uses  and  sales  of  ar- 
dent spirits,  subject  to  the  right  of  importation  and  of  sale  by 
the  importer.  Those  who  attach  any  value  to  expressions  which 
are  obiter  dicta  and  not  necessary  to  the  decision  of  the  precise 
question  under  examination,  will  do  well  to  remember  that  the 
language  referred  to  asserts  the  absence  of  any  thing  in  the 
constitution  of  the  United  States  which  forbids  the  passage  of 
prohibitory  laws,  and  nothing  more.     The  cases  in  which  the 

Vol.  XX.  26 


5^02  CASES  IN"  THE  SUPREME  COURT. 

The  People  v.  Toynbee. 

observations  occur  determined  that  the  excise  laws  of  the  sev- 
eral states  named  in  the  proceedings  did  not  conflict  with  the 
authority  given  to  congress  to  regulate  commerce  with  fbreign 
countries  and  among  the  several  states,  and  nothing  else.  The 
power  of  a  state  exercising  its  sovereign  authority,  is  that  to 
which  these  learned  judges  refer  ;  but  the  poAver  of  a  state  leg- 
islature, exercising  its  authority  under  such  restraints  and  limi- 
tations as  its  constituents  may  have  imposed  upon  it,  is  quite  a 
different  thing,  and  one  which  they  did  not  consider.  The  ques- 
tion here  is  not  what  the  legislature  might  do  were  these  limi- 
tations removed  or  modified,  nor  what  the  people  of  the  state 
might  do  by  an  amendment  of  the  organic  law,  but  what  the 
legislature  may  now  do  with  the  limitations  in  full  force. 

A  distinction  has  also  been  suggested  between  the  power  of 
the  legislature  over  property  in  liquors,  acquired  and  existing  at 
the  time  the  act  took  effect,  and  property  in  liquors,  acquired 
afterwards.  The  act  itself  recognizes  no  such  distinction,  and 
does  not  discriminate  between  present  and  future  acquisitions, 
but  applies  its  penalties,  forfeitures  and  disabilities  with  unspar- 
ing rigor  to  those  who  now  own  and  to  those  who  may  hereafter 
own  such  property.  In  this  respect  I  thiidc  it  entirely  consist- 
ent with  itself,  for  a  constitutional  security  which  does  not  cover 
future  as  well  as  present  acquisitions  is  of  no  practical  value, 
and  will  afford  no  sort  of  guaranty  against  intentional  or  mista- 
ken awwression.     Here  are  a  class  of  citizens  who  have  invested 

(TO 

their  property  and  spent  the  best  years  of  their  lives  in  learn- 
ing and  establishing  a  particular  business  or  trade,  inoffensive 
and  commendable  in  itself,  the  growth  and  manufacture,  it  may 
be,  of  wine  ;  the  culture  of  baidey  and  hops,  the  manufacture 
of  fire  arms  and  gunpowder  ;  the  fabi'ication  of  types,  printing 
presses  and  paper ;  and  then  comes  a  legislative  act,  confessing 
its  incompetency  to  invade  or  disturb  existing  interests,  and 
declares  that  because  wine  and  the  decoction  of  barley  and  hops 
may  lead  to  intoxication  ;  fire  arms  and  gunpowder  to  war, 
bloodshed  and  the  destruction  of  human  life  ;  and  types,  print- 
ing presses  and  paper  to  blasphemous,  libelous  and  obscene 
publications,  all  future  acquisitions  of  the  kind   shall  cease  to 


I 


DUTCHESS— JULY,  1855.  203 


The  People  v.  Toynbee. 


be  regarded  as  property,  and  be  no  longer  entitled  to  claim  the 
Denefit  and  protection  of  the  laws.  Let  this  fancied  distinction 
between  present  and  future  acquisitions  once  obtain,  and  prop- 
erty will  not  hereafter  depend  for  its  security  upon  a  permatient 
rule  of  constitutional  law,  but  upon  legislative  moderation  and 
forbearance  and  such  limitations  as  legislative  wisdom  and  dis- 
cretion may  put  upon  its  own  authority.  But  let  us  look  upon 
"  this  distinction  in  another  aspect.  Brown  v.  IVie  Slate  of 
Maryland,  (12  Wheaion,  419,)  decides  that  a  state  law  requi- 
ring importers  of  foreign  goods,  (including  liquors)  to  take  out 
a  license  before  proceeding  to  sell  by  the  bale  or  package,  is 
repugnant  to  the  constitution  of  the  United  States  and  void: 
In  other  words,  that  a  state  has  no  power  to  prohibit  sales  of 
foreign  goods  by  the  importer  in  the  bale  or  package  in  which 
they  were  imported.  It  was  argued,  in  behalf  of  the  state, 
that  whenever  the  goods  entered  its  jurisdiction,  the  power  of 
congress  ceased  and  that  of  the  state  was  substituted  in  its  place. 
Chief  Justice  Marshall  answered  the  argument  in  this  wise : 
"Commerce  is  intercourse.  One  of  its  most  ordinary  ingredi- 
ents is  traflBc.  It  is  inconceivable  that  the  power  to  authorize 
this  traffic,  when  given  in  the  most  comprehensive  terms,  with 
the  intent  that  its  efficiency  should  be  complete,  should  cease  at 
the  point  where  its  continuance  is  indispensable  to  its  value. 
To  what  purpose  should  the  power  to  allow  importations  be  giv- 
en, unaccompanied  with  the  power  to  authorize  a  sale  of  the 
thing  imported.  Sale  is  the  object  of  importation  and  is  one 
essential  ingredient  of  that  intercourse  of  which  importation 
constitutes  a  part.  It  is  as  essential  an  ingredient,  as  indis- 
pensable to  the  entire  thing,  as  importation  itself.  It  must  be 
considered  as  a  component  part  of  the  power  to  regulate  com- 
merce. Congress  has  a  right  not  only  to  authorize  importation 
but  to  authorize  the  importer  to  sell."  Here  then  is  a  positive 
affirmation  that  the  right  to  sell,  by  the  importer,  is  a  compo- 
nent part  of  the  power  to  regulate  com.merce,  and  that  congress 
may,  in  disregard  of  state  legislation,  authorize  the  importer  to 
sell.  Now,  the  right  to  sell  by  the  importer  implies  the  right 
to  purchase  by  some  other  person,  because  there  can  be  no  sale 


204  OASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toynbce. 

if  there  is  no  person  to  purchase.  Had  the  state  of  Maryland, 
in  place  of  prohibiting  sales  by  the  importer,  gone  farther  and 
prohibited  purchases  from  the  importer  by  its  own  citizens,  can 
there  be  a  doubt  that  such  a  prohibition  to  purchase  would  have 
been  held  equally  void  as  the  prohibition  to  sell,  and  equally 
hostile  to  this  exclusive  right  of  congress  to  regulate  commerce  ? 
When,  therefore,  a  citizen  of  the  state  of  New  York  becomes 
the  purchaser  of  foreign  liquor  from  the  importer,  he  acquires  a 
right  of  property  under  the  paramount  law  of  the  United  States 
as  sacred  and  secure  from  legislative  invasion  and  aggression  as 
rights  of  property  which  were  vested  at  the  time  the  law  under 
consideration  took  effect. 

If  the  judgment  in  the  case  of  BroiDii  v.  The  State  of 
Maryland,  and  the  reasoning  of  the  Chief  Justice,  is  entitled 
to  any  weight  as  authorit}',  it  is  decisive  of  the  question  so  far 
as  sales  of  foreign  liquors  by  importers  is  concerned.  The 
right  of  importation,  we  see,  means  the  right  to  introduce  for- 
eign goods  into  the  country,  and  to  sell  them  to  those  who  may 
choose  to  become  purchasers.  If  state  legislation  can  substan- 
tiall}'  take  away  from  the  mass  of  its  citizens  the  power  to  be- 
come purchasers,  a  state  can  in  effect  impede  foreign  trade  and 
put  an  end  to  foreign  importations.  It  has  only  to  declare  what 
the  act  under  examination  declares  ;  that  the  importer  shall 
only  sell  in  the  original  packages,  to  such  persons  as  the  state 
may  license  and  authorize  to  become  purchasers.  Sale  is  no 
longer  incidental  to  importation.  The  importer's  right  to  dispose 
of  his  goods  in  the  market  no  longer  depends  upon  the  authority 
given  to  congress  to  regulate  commerce  and  intercourse  with 
foreign  countries.  But  it  depends  also  upon  the  disposition  of 
the  state  to  suffer  their  citizens  to  become  purchasers  of  foreign 
commodities.  I  am  unable  to  perceive  any  difference  between 
state  resistance  to  foreign  importations  by  interdicting  sales  bj 
and  purchases  from  the  importer,  and  resistancje  by  a  preventive 
force  stationed  upon  its  own  borders.  Either  mode  is  an  un- 
warrantable interference  Avith  a  subject  of  legislation  over  which 
congress  has  exclusive  control  and  dominion. 

The  laws  which  prohibit   internmral   interments,  referred  to 


DUTCHESS— JULY,  1855.  205 


The  People  r.  Toyiilwe. 


upon  the  argument,  stand  upon  the  intelligible  and  constitution* 
al  ground  of  police  regulations  to  prevent  nuisances.  (^Coates 
V.  The  Mayor  (S^c.  of  New  York,  (7  Cowen,  585.)  And  the 
statutes  which  authorize  the  destruction  of  buildings  to  arrest 
the  progress  of  fire  or  the  ravages  of  pestilence,  are  justified 
by  the  law  of  over-ruling  necessity,  and  are  the  exercise  of  a 
natural  right  to  avert  a  great  public  calamit3\  (2  Kent's  Com. 
338.     Russell  v.  The  Mayor  ^c.  of  New  York,  2  Denio,  461.) 

I  therefore  arrive  at  the  conclusion,  that  so  much  of  the  1st 
section  of  the  act  under  consideration  as  declares  that  intoxicat- 
ing liquor  shall  not  be  sold  or  kept  for  sale,  or  with  intent  to 
be  sold,  except  by  the  persons  and  for  the  special  uses  mentioned 
in  the  act ;  so  much  of  sections  6,  7,  10  and  12  as  provide  for 
its  seizure,  forfeiture  and  destruction  ;  so  much  of  the  16th  sec- 
tion as  declares  that  no  person  shall  maintain  an  action  to  re- 
cover the  value  of  any  liquor  sold  or  kept  by  him  which  shall 
be  purchased,  taken,  detained  or  injured,  unless  he  prove  that 
the  same  was  sold  according  to  the  provisions  of  the  act,  or 
was  lawfully  kept  and  owned  by  him;  so  much  of  section  17  as 
declares  that  upon  the  trial  of  any  complaint  under  the  act, 
proof  of  delivery  shall  be  proof  of  sale,  and  proof  of  sale  shall  be 
suflScient  to  sustain  an  averment  of  unlawful  sale  ;  and  so  much 
of  section  25  as  declares  that  intoxicating  liquor  kept  in  viola- 
tion of  any  of  the  provisions  of  the  act,  shall  be  deemed  to  be 
a  public  nuisance,  are  repugnant  to  the  provisions  of  the  consti- 
tution for  the  protection  of  liberty  and  property,  and  absolute- 
ly void. 

The  proceedings  in  both  the  cases  are  reversed  and  set  aside, 
and  Philip  Bei'bcrrich  is  discharged  from  his  arrest. 

S.  B.  Strong,  J.  This  cause  [  The  People  v.  Toynoee\  comes 
before  us  on  an  appeal  by  the  defendant  from  a  judgment  ren- 
dered against  him  by  a  police  justice  of  the  city  of  Brooklyn,  for 
the  alleged  violation  of  the  statute  for  the  "  prevention  of  intem- 
perance, pauperism  and  crime,"  commonly  called  the  prohibitory 
act.  The  complaint  was  preferred  before  the  justice  by  a  po- 
liceman, pursuant  to  the  12th  section  of  the  statute.     It  stated, 


206  CASES  IN  THE  SUPEEME  COURT. 

The  People  v.  Toj'iibee. 

in  substance,  that  on  the  17th  of  July,  1855,  the  defendant  sold, 
and  kept  for  sale,  and  had  in  his  possession  with  intent  to  sell, 
in  Montague  street  in  the  third  ward  of  said  city,  intoxicating 
liquors,  to  wit,  brandy  and  champagne,  in  violation  of  the  said 
statute  ;  and  that  said  offense  consisted  in  selling  one  glass  of 
brandy  and  one  bottle  of  champagne.  When  the  defendant  was 
brought  before  the  justice,  his  counsel  moved  that  he  should  be 
discharged,  on  the  grounds  that  it  did  not  appear  by  the  com- 
plaint that  any  crime  or  offense  whatever  had  been  committed  ; 
and  that  the  act  under  Avhich  the  prosecution  had  been  instituted 
is  unconstitutional  and  void.  The  motion  was  denied.  The  de- 
fendant then  said  that  he  did  not  request  to  be  tried  by  a  court 
of  special  sessions,  but  that  he  objected  thereto,  and  offered  to 
give  bail  to  appear  at  the  next  court  having  criminal  jurisdic- 
tion. The  justice  overruled  the  objection,  declined  to  receive 
such  bail,  and  required  the  defendant  to  plead  to  the  charge. 
The  defendant  thereupon  pleaded  not  guilty.  A  trial  was  im- 
mediately had  before  the  justice,  without  a  jury  ;  the  defendant 
was  convicted,  and  sentenced  to  pay  a  fine  of  $50  and  the  costs  ; 
and  it  was  adjudged  that  the  intoxicating  liquor  should  be 
forfeited. 

The  defendant's  counsel  objected  bef)re  the  justice  that  the 
complaint  was  defective,  because  it  did  not  aver  that  the  liquors 
alleged  to  have  been  sold  were  not  liquors,  the  right  to  sell  which 
in  this  state  is  given  by  any  law  or  treaty  of  the  United  States. 
If  such  an  averment  was  necessary,  the  justice  should  have  dis- 
missed the  complaint  by  reason  of  the  omission.  The  statute 
does  not  direct  what  the  complaint  shall  contain,  and  that  is,  of 
course,  left  to  the  rules  of  the  common  law.  The  complaint  is  a 
substitute  for  an  indictment,  so  fiir  as  it  relates  to  substance, 
and  requires,  at  least,  as  much  particularity — indeed  the  author- 
ities say  more.  Mr.  Chitty,  in  his  approved  work  on  criminal 
iaw,  {vol.  1,  J).  281,  2,)  says,  "It  is  a  general  rule  that  all  in- 
dictments, upon  statutes,  especially  the  most  penal,  must  state 
all  tlie  circumstances  which  constitute  the  definition  of  the  of- 
fense in  the  act,  so  as  to  bring  the  defendant  precisely  within  it." 
"  And  [he  adds]  not  even  the  fullest  description  of  the  offense. 


DUTCHESS— JULY,  1855.  .  207 


The  People  v.  Toynbee. 


I 


were  it  even  in  the  terms  of  a  legal  definition,  would  be  suffi- 
cient without  keeping  close  to  the  expressions  of  the  statute." 
In  the  case  of  IVie  People  v.  Allen,  (5  Denio,  79,)  Beardsley, 
C.  J.,  says,  "an  indictment  upon  a  statute  must  state  all  such 
facts  and  circumstances  as  constitute  the  statute  offense,  so  as  to 
bring  the  party  indicted  precisely  within  the  provisions  of  the 
statute.  If  the  statute  is  confined  to  certain  classes  of  persons, 
or  to  acts  done  at  some  particular  time  or  place,  the  indictmenic 
must  show  that  the  party  indicted,  and  the  time  and  place  [where 
and]  when  the  alleged  criminal  acts  were  perpetrated,  Avere  such 
as  to  bring  the  supposed  ofi'ense  directly  within  the  statute." 
There  can  be  no  doubt  as  to  the  principle  ;  it  is  reasonable  and 
proper,  and  is  not  controverted  by  any  respectable  authority. 
The  first  section  of  the  statute  under  consideration  enacts  that 
intoxicating  liquors,  except  as  thereinafter  provided,  shall  not 
be  sold  or  kept  for  sale,  or  with  intent  to  be  sold,  by  any  person 
for  himself  or  any  other  person,  in  any  place  whatsoever.  These 
expressions  are  certainly  very  broad  and  comprehensive,  and 
they  are  not  so  restricted  by  their  reference  to  subsequent  ex- 
ceptions, as  to  make  any  negation  of  such  as  are  included  in 
other  sections  a  necessary  part  of  the  description  of  any  alleged 
prohibition.  {Popharn,  93,  4.  Hawkins,  b.  2.  ch.  25,  §  113.) 
The  last  clause  of  the  first  section,  however,  declares  expressly 
that  the  section  itself  shall  not  apply  to  liquor,  the  right  to  sell 
which  in  this  state  is  given  by  any  law  or  treaty  of  the  United 
States.  The  statute  does  not  forbid  the  sale  of  all  intoxicating 
liquors.  A  large  class  certainl}^  is  exempt  from  the  prohibition. 
It  is  not  necessary  that  I  should  consider,  in  discussing  this 
point,  how  far  the  qualification  extends,  but  it  is  material  to 
the  decision  of  another  point  involved  in  this  case,  and  I  may  as 
well  express  my  opinion  about  it  here. 

The  question  which  has  been  agitated  upon  this  point  is, 
whether  the  exception  refers  to  foreign  liquors  only  while  in  the 
hands  of  the  importers,  and  contained  in  the  original  cask  or 
vessel,  when,  according  to  the  decisions  of  the  supreme  court  of 
the  United  States,  the  right  of  sale  is  given  1)y  congressional 
legislation,  or  to  such  liquors  at  all  times  and  in  whatever  con 


208  OASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toynbee. 

(lition  they  may  be ;  in  other  words,  whether  it  I'efers  to  the 
liquors  themselves  or  to  their  status.  It  must  be  admitted  that 
the  language  is  susceptible  (and  I  think  equally  susceptible)  of 
either  interpretation.  In  these  cases  the  rules  of  construction 
are  different,  according  to  the  character  of  the  statutes — whether 
they  are  purely  remedial  or  penal.  The  former  is  entitled  to  a 
liberal,  while  the  latter  is  confined  to  a  strict  construction.  A 
statute  is  purely  remedial  when  it  furnishes  additional  means 
of  redress  to  an  existing  wrong.  In  criminal  cases  it  applies  to 
something  that  is  already  malum  in  se  or  malimi  "prohibitum. 
It  is  then  creative  of  the  remedy  only.  As  all  are  in  favor  of  the 
due  punishment  of  acknowledged  crime,  we  readily  admit  that 
statutes  designed  for  that  purpose  are  entitled  to  a  ftivorable 
construction.  But  it  is  otherwise  when  the  statute  creates  a 
new  offense.  It  is  then  an  innovation,  often  an  encroachment 
upon  previous  rights,  and  its  correctness  or  justice  is  not  alwaj's 
conceded,  or  generally  admitted.  The  rule  is,  therefore,  very 
properly,  that  such  a  statute  should  be  construed  strictly;  that 
nothing  should  be  deemed  a  crime  under  it  but  what  is  clearly 
and  unequivocally  defined.  No  man  should  be  punished  for  an 
act  (previously  lawful)  under  a  new  statute,  unless  it  clearly  an- 
nounces to  him,  beyond  any  reasonable  doubt,  that  it  is  criminal. 
Now  the  statute  under  consideration  is  creating  a  new  offense. 
True,  it  was  a  misdemeanor  before,  to  sell  strong  or  spirituous 
liquors  or  wines,  in  quantities  less  than  five  gallons,  without  a 
license.  But  the  offense  under  the  revised  statutes  was  only  a 
part  of  what  was  rendered  a  crime  under  the  prohibitory  act,  and 
as  the  latter  is  integral,  it  is  in  effect  new,  and  must  be  so  consid- 
ered. xVpplying  the  principle  of  construction  I  have  endeavored 
to  illustrate  to  the  qualifying  clause  of  the  first  section,  and 
taking  that  by  itself,  the  prohibition  would  not  extend  to  import- 
ed liquors  at  all.  But  there  is  another  rule  in  giving  a  con- 
struction to  an  expression  in  a  statute  equally  indicative  of  tw. 
varied  meanings,  and  that  is,  that  the  whole  enactment  must  D«. 
considered,  and  if  one  of  the  interpretations  is  consonant  to  the 
other  provisions  and  the  main  scope  and  design  of  the  act,  and 
the  other  not,  that  which  is  consistent  shall  prevail.     It  is  not 


DUTCHESS— JULY,  1855.  209 


The  People  v.  Toynbee. 


then  a  question  of  strict  or  liberal  construction,  but  the  prepon 
derance  produces  re"asonable  certainty.  Now,  no  one,  who  reads 
the  act  in  question,  and  considers  its  object,  can  hesitate  a  mo- 
ment in  coming  to  the  conclusion  that  the  legislature  intended 
to  prohibit,  mainly,  the  sale  of  imported  liquors  as  a  beverage. 
Indeed,  the  statute  would  be  wholly  ineffectual  if  it  did  not  go 
to  that  extent.  Instead  of  being  an  extension  it  would  be  a  re- 
laxation of  the  old  system.  I  think,  therefore,  that  the  true  way 
of  reading  the  first  section,  is  as  a  prohibition  of  the  sale  of  in- 
toxicating liquors,  not  vendible  beyond  state  legislation,  in  their 
existing  condition,  according  to  the  decisions  of  the  supreme 
court  of  the  United  States.  But  to  whatever  extent  the  vend- 
ible liquors  may  go,  their  express  exemption  qualifies  the  de- 
scription of  those  included  in  the  prohibition.  Men  may  still 
sell  intoxicating  liquors — all  that  is  charged  in  the  complaint — 
and  yet  not  be  guilty  of  any  offense.  It  is  undoubtedly  true 
that  when  a  statute  contains  provisos  and  exceptions,  in  distinct 
clauses,  it  is  not  necessary  to  state  in  an  indictment  that  the 
defendant  does  not  come  within  the  exception,  or  negative  the 
provisos  it  contains.  The  reason  given  is,  that  these  are  matters 
of  defense,  which  it  is  necessary  that  the  accused  should  aver 
and  prove.  But  that  principle  does  not  apply  where,  as  in  this 
case,  the  enacting  section  declares  that  it  is  inapplicable  to  tlie 
excepted  matters.  The  statute  does  not,  then,  constitute  them 
the  subjects  of  offense  ;  and  it  is  not  necessary  for  the  accused 
to  aver  or  prove  any  defense  until  there  is  proof  that  he  is  guilty 
of  what  is  condemned.  In  the  case  of  Rex  v.  Jarvis,  cited  in  a 
note  to  Rex  v.  Stone,  (1  East,  639,)  Lord  Mansfield  said  that 
Avhere  exceptions  are  in  the  enacting  part  of  the  law,  it  must 
appear  in  the  charge  that  the  defendant  does  not  fall  within 
any  of  them.  And  Foster,  J.,  who  was  an  eminent  criminal 
lawyer,  remarked  that  "  where  negatives  are  descriptive  of  the 
offense,  then  they  must  be  set  forth." 

The  rules  which  I  have  stated  are  applicable  to  indictments 
which  are  preferred  by  a  grand  jury,  and  where  the  accused 
may  have  the  benefit  of  a  fair  and  deliberate  trial  by  jury.  But 
a  greater  degree  of  strictness  is  required  in  summary  proceedings 

Vol.  XX.  27 


-210  CASES  IN"  THE  SUPREME  COURT. 

The  People  v.  Toynbee. 

before  an  inferior  jurisdiction,  which  does  not  afford  1  i  the  de- 
fendants those  advantages  that  the  common  course  cf  law  al- 
lows them.  In  such  cases  Mr.  Chitty  says,  {vol.  1,  p.  234,)  it 
is  necessary  to  show  by  negative  averments  that  the  defendants 
are  not  within  any  of  the  provisos  or  exceptions  of  the  statute 
It  does  not  cure  the  difficulty  that  the  defendant  is  charged  with 
having  sold  liquors  contrary  to  the  form  of  the  statute.  That 
will  not  aid  a  defective  description  of  the  offense,  *  Nor  can  the 
defect  be  cured  by  evidence.  The  evidence  must  be  confined  to 
the  charge,  and  the  accused  cannot  be  required  to  answer  any 
complaint  except  that  which  sets  out  an  offense  conformably  to 
the  rules  of  law.  My  conclusion  upon  this  point  is,  that  the 
complaint  was  radically  defective,  and  that  a  conviction  upon  it 
cannot  stand. 

The  next  objection  to  the  proceeding  before  the  justice  is, 
that  by  refusing  the  defendant's  tender  of  bail  for  his  appear- 
ance at  the  next  court  having  criminal  jurisdiction,  there  Avas  in 
effect  denied  to  him  the  constitutional  right  to  be  tried  by  a 
competent  jury.  The  result  of  the  denial  was,  that  if  the  de- 
fendant had  been  tried  hj  a  jury  it  must  necessarily  have  been 
before  one  consisting  of  six  persons,  out  of  twelve  to  be  summon- 
ed by  the  constable. 

The  jurors  for  our  courts  of  special  sessions  are  generally 
taken  from  the  immediate  neighborhood,  and  are  liable  to  be 
influenced  ;  and  their  verdict  is  sometimes  controlled  by  the 
bias  created  by  a  public  accusation  for  the  commission  of  a  crime 
in  their  own  vicinity.  They  are  ordinarily  selected  too  by  an 
officer  who  has  ha,d  an  agency  in  the  preliminary  steps  against 
the  accused,  and  who  as  is  sometimes  the  case  with  police  offi- 
cers, may  be  anxious  to  procure  bis  conviction.  Whereas,  the 
jurors  in  our  higher  courts  of  criminal  jurisdiction  are  designa- 
ted by  responsible  town  officers  ;  their  names  are  deposited  in 
a  box  kept  by  the  county  clerk,  and  are  draAvn  byhim  in  the 
presence  of  some  of  the  county  officers,  and  they  are  taken 
from  the  whole  county.  These  measures  are  taken  for  the 
purpose  of  having  intelligent  and  impartial  jurors,  and  the}''  are 
generally  effectual.     Besides,  it  is  a  matter  of  some  importance 


DUTCHESS— JULY,  1855.  ^  j  ] 


The  People  v.  Toynbee. 


to  the  accused  whether  his  character,  his  liberty  and  h^s  prop- 
erty are  made  dependent  upon  the  verdict  of  twelve  or  of  six 
men.  Innocent  men  have  sometimes  escaped  from  the  worst  of 
punishment  by  the  voice  of  a  single  juror ;  and  in  such  cases 
the  larger  number  of  course  affords  the  greater  protection.  It 
is  true,  too,  that  the  chance  of  escape  of  the  guilty  is  increased 
by  the  same  means.  But  in  the  administration  of  justice  it  is 
at  least  as  essential  to  protect  the  innocent  as  to  punish  the 
guilty.  The  right  claimed  by  the  defendant  is  an  important  one, 
and  if  his  claim  was  well  founded,  the  subsequent  proceedings 
should  not  have  been  had,  and  the  judgment  resulting  from  them 
against  the  accused  was  void. 

On  looking  over  the  entire  statute,  it  seems  to  me  that  the 
provisions  relative  to  the  trials  under  it  indicate  an  intent  to 
confine  them  to  the  special  sessions.  The  magistrate  who  issues 
the  original  process  constitutes  the  court ;  they  are  identical. 
The  fifth  section  provides  that  such  court  shall  not  be  required 
to  take  the  examination  of  the  accused,  but  shall  proceed  to 
trial  as  soon  as  the  complainant  can  be  notified.  The  provisions 
of  the  act  relative  to  appeals  apply  exclusively  to  judgments  in 
the  courts  of  special  sessions,  and  are  mostly  inapplicable  to 
trials  before  the  general  sessions,  or  oyer  and  terminer.  Many 
of  them  are  very  important.  The  right  of  appeal  is  given  to 
the  complainant  as  well  as  the  defendant.  If  the  defendant  ap- 
peals, he  is  required  to  give  a  satisfactory  bond  that  he  will  not, 
during  the  pendency  of  the  appeal,  violate  any  of  the  provisions 
of  the  statute.  The  ordinary  power  of  amendment,  of  the  ap- 
pellate court,  is  considerably  increased,  and  any  judgment  or 
verdict  against  evidence  may  be  reversed  on  appeal,  as  (in  tho 
words  of  the  statute)  '"in  civil  actions."  It  is  not  material  to 
inquire  here  whether  verdicts  against  evidence  in  civil  actions 
can  be  reversed  on  appeal.  I  am  considering  the  provision  sim- 
ply as  indicative  of  the  intention  of  the  legislature.  Now  if  it 
was  designed  by  constituting  offenses  under  the  act  misdemean- 
ors, to  confer  the  right  to  try  the  accused  in  the  courts  of  gen- 
eral sessions  and  oyer  and  terminer,  the  legislature  would,  I 
think,  have  made  the   provisipns  relative  to  appeals  applicable 


212  CASES  m  THE  SUPREME  COURT. 

The  People  v.  Toynbce. 

to  those.courts  also,  otherwise  their  work  would  have  bten  but 
half  done.  There  are  other  provisions  in  the  statute  indicating  a 
design  that  all  trials  under  it  should  be  had  in  the  special  sessions, 
and  not  any  to  the  contrary.  The  rule  in  these  cases  is,  that 
when  the  statute  creates  a  new  offense,  and  particularly  describes 
a  method  of  trial  and  a  punishment  adequate  to  the  offense  for 
its  violation,  the  complainants,  whether  the  public  or  individuals, 
are   confined  to  the  remedies  expressly  given  in  such  statute. 

I  am,  therefore,  inclined  to  agree  with  the  justice  in  the  con- 
clusion to  which  he  arrived,  that  so  far  as  the  statute  went,  he 
could  not  be  required  to  take  the  proffered  bail.  But  the  more 
important  question  arises  whether  the  (in  effect)  denial  of  the 
privilege  claimed  by  the  defendant  is  not  violative  of  the  con- 
stitutional right  of  trial  by  jury.  If  it  be  so,  the  enactment, 
so  far  as  it  relates  to  compulsory  trials  in  the  courts  of  special 
sessions,  is  void. 

The  constitution  of  this  state  which  went  into  operation  in 
1847,  ordains,  (article  1,  §  2,)  that  the  trial  by  jury  in  all  cases 
in  which  it  has  been  heretofore  used,  should  remain  inviolate 
forever.  The  language  is  strong  and  evinces  the  importance 
which  was  justly  attached  to  the  privilege.  The  terms  used  in 
the  constitution  must  be  applied  according  to  their  meaning  at 
common  law,  unless  a  different  interpretation  is  clearly  indica- 
ted. There  is  no  evidence  of  any  different  intent  in  reference 
to  this  provision,  nor  can  any  be  inferred.  A  jury,  by  the  rules 
of  the  common  law,  must  consist  of  twelve  men.  It  was  there- 
fore very  properly  remarked  by  Johnson,  J.,  in  Crvger  v.  The 
Hudson  River  Rail  Road  Company,  (2  Ker.  R.  198,)  that 
the  constitutional  provision  which  I  have  quoted,  imports  a  jury 
of  12  men,  whose  verdict  must  be  unanimous.  In  reference  to 
tlie  cases  to  Avhich  it  refers,  and  whether  they  include  the  sub- 
sequently created  cases,  I  will  quote  from  an  opinion  in  the 
case  of  Wood  v.  The  City  of  Brooklyn;  (14  Barh.  432.)  be- 
cause it  expresses  my  present  sentiments  on  this  subject.  "  This 
provision  -relates  to  classes  and  of  course  includes  the  individu- 
al cases  which  they  comprise.  In  no  other  way  can  constitu- 
tional enactments  preserve  that  continued   efficacy  which  is  so 


DUTCHESS- -JULY,  1855.  213 


The  People  v.  TojTibee. 


essential  for  the  public  good.  Whenever,  therefore,  a  new  cina 
is  added  to  a  class  it  becomes  subject  to  its  rules.  A  crime 
newly  created  is  subject  to  any  constitutional  regulations  rela- 
tive to  the  class  of  crimes  generally.  The  constitutional  pro- 
vision refers  to  usage,  and  that  must  control  and  define  its 
application.  It  is  a  matter  of  public  notoriety  that  accusations 
for  crimes  have  generally  been  tried  before  a  jury.  If  there 
have  been  exceptions  they  have  not  been  sufficiently  numerous 
to  affect  the  general  usage.  The  introduction  of  a  new  subject 
into  a  class  renders  it  amenable  to  its  general  rules,  not  to  its 
exceptions,  unless  there  is  something  peculiar  calling  for  that 
application.  To  allow  the  legislature  to  except  from  the  opera- 
tion of  a  constitutional  provision  by  direct  enactment,  a  matter 
clearly  falling  within  its  meaning,  would  sanction  a  fraud  upon 
the  organic  law,  and  might  in  the  end  destroy  its  obligation." 
These  remarks  were  originally  applied  to  penalties,  but  in  the 
quotation  I  have  substituted  crimes  to  which  they  are  alike  ap- 
plicable. The  sentiments  were  expressed  by  me,  in  1852,  and 
I  cite  them  with  the  greater  satisfaction  as  they  have  recently 
received  the  concurrence  of  three  of  my  brethren.  The  same 
principle  was  applied  by  Chancellor  Walworth  to  the  crime  of 
murder  in  the  case  of  The  People  v.  Enoch,  decided  by  the 
court  for  the  correction  of  errors.  (13  Wend.  159.)  In  his  opin- 
ion in  that  case  he  made  the  following  ,remark  :  "  Malice  was 
implied  in  many  cases  at  the  common  law  where  it  was  evident 
that  the  offenders  could  not  have  had  any  intention  to  destroy 
human  life,  merely  on  the  ground  that  the  homicide  Avas  com- 
mitted while  the  person  who  did  the  act  was  engaged  in  the 
commission  of  some  other  felony,  or  in  an  attempt  to  commit 
some  offense  of  that  grade.  This  principle  is  still  retained  in 
the  law  of  homicide,  and  it  necessarily  follows,  from  the  princi- 
ple itself,  that  as  often  as  the  legishiture  creates  new  felonies. 
or  raises  offenses  which  were  only  misdemeanors  at  the  common 
law  to  the  grade  of  felony,  a  neio  class  of  murder  is  created" — • 
(it  would  probably  have  been  more  accurate  to  have  said  the 
previously  existing  class  was  enlarged) — "  by  the  application  of 
this  principle  to  the  case  of  a  killing  of  a  human  being,  by  a 


2  ]  4  OASES  IN  THE  SUPKEME  COURT. 

The  People  v.  Toynbee. 

person  who  is  engaged  in  the  perpetration  of  a  newly  created 
felony.  The  court  and  jury  in  such  cases  immediately  apply 
the  common  lato  principle,  and  the  killing  is  adjudged  to  be  mur- 
der or  manslaughter,  according  to  the  nature  and  quality  of  the 
crime  that  the  offender  was  perpetrating  at  the  time  the  homi- 
cide was  committed,"  There  could  not  be  a  stronger  case  to 
illustrate  the  rule  that  newly  created  crimes  are  subject  to  the 
incidents  of  the  class  into  which  they  are  introduced,  without 
any  express  provision  to  that  effect  in  the  statute.  By  the 
terms  of  the  prohibitory  act  the  offense  imputed  to  the  defend- 
ant was  characterized  as  a  misdemeanor.  The  usage  in  crimi- 
nal cases  prevailing  immediately  before,  and  at  the  time  of  the 
adoption  of  the  constitution,  and  to  which  it  refers,  was  undoubt- 
edly conformable  to  the  provisions  of  the  revised  statutes 
which  had  been  in  operation  since  1830.  (2  E.  S'.  711,  §  2,  3.) 
Pursuant  to  those  provisions  persons  accused  of  misdemeanors 
had  the  right  in  all  cases,  to  give  bail  for  their  appearance  at 
the  next  court,  having  criminal  jurisdiction,  which  must  be 
either  the  general  sessions  or  oyer  and  terminer,  and  in  their 
doing  so,  or,  what  was  equivalent,  making  an  offer  to  that  effect 
which  was  refused,  a  court  of  special  sessions  could  proceed  no 
further.  That,  in  effect,  secured  to  the  accused  at  their  op- 
tion the  right  to  be  tried  by  a  jury  of  twelve  men,  and  to  be 
exempt  from  punishment  except  by  their  unanimous  verdict. 
That  right  was  denied  to  the  defendant  in  the  case  under  con- 
/Sideration.  If  the  prohibitory  act  called  for  such  denial  it  con 
travened  the  constitutional  ordinance  and  was  so  far  void  ;  or  if 
it  impliedly  permitted  the  continuance  of  the  privilege  it  should 
have  been  accorded  to  the  defendant  on  his  demand.  So  that 
qiiacunque  via  data,  this  objection  is  fatal  to  the  conviction. 

The  only  remaining  question  which  I  deem  it  proper  to  con- 
sider, is  :  Whether  the  act  in  question,  so  far  as  it  purports  to 
prohibit  the  sale  of  intoxicating  liquors  to  be  used  as  a  bever 
age,  is  valid.  The  objection  urged  against  that  feature  of  the 
act  is,  that  it  is  an  exercise  of  despotic  power,  calling  for  an 
unconstitutional  interference  with  the  rights  of  property.  All 
eiviiized  nations  agree  in  asserting  the  rights  of  property',  and 


DUTCHESS— JULY,  1855.  215 


The  People  v.  Toynbee. 


I 


holding  them  sacred,  as  essential  to  the  prosperity  and  happi- 
ness of  man.  Sir  William  Blackstone  says,  (2  Com.  2,)  that 
"there  is  nothing  which  so  generally  strikes  the  imagination 
and  engages  the  affections  of  mankind  as  the  right  of  prop- 
erty, or  that  sole  and  despotic  dominion  which  a  man  claims 
and  exercises  over  the  external  things  of  the  world,  in  total  exclu- 
sion of  the  right  oi  any  other  individual  in  the  universe  ;"  and 
Chancellor  Kent  well  remarks,  (2  Com.  319,)  that  *'  the  sense 
of  property  is  graciously  bestowed,  on  mankind  for  the  purpose 
of  rearing  them  from  sloth  and  stimulating  them  to  action ;  and 
80  long  as  the  right  of  acquisition  is  exercised  in  conformity  with 
the  social  relations  and  the  moral  obligations  which  spring  from 
them,  it  ought  to  be  sacredly  protected.  The  natural  and  act-' 
ual  sense  of  property  pervades  the  foundations  of  sodal  improve- 
ment. It  leads  to  the  cultivation  of  the  earth,  the  institution 
of  government,  the  establishment  of  justice,  the  acquisition  of 
the  comforts  of  life,  the  growth  of  the  useful  arts,  the  spirit 
of  commerce,  the  productions  of  taste,  the  erections  of  charity, 
and  the  display  of  the  benevolent  affections."  There  are,  un- 
doubtedly, visionary  theorists  who  advocate  the  community  of 
property  in  small  societies  ;  but  the  general  sense  of  mankind 
indicates  that  civilized  society  cannot  exist  when  the  right  to 
separate  and  distinct  property  does  not  prevail,  or  is  not  sacred- 
ly protected.  The  people  of  this  state  have  shown  their  appre- 
ciation of  the  rights  of  property,  in  their  organic  law,  by  declar- 
ing, {art.  1,  p.  6,)  that  "no  person  shall  be  deprived  of  life, 
liberty  or  property,  without  due  process  of  law."  We  are  thus 
as  effectually  protected  in  the  enjoyment  of  our  property  as 
of  our  own  Uves  or  our  liberty.  The  jtrotection  given  to  prop- 
erty as  well  hy  the  sense  of  mankind  as  by  positive  enactment 
makes  no  distinction  as  to  its  greater  or  less  utility.  It  ex- 
tends to  whatever  has  been  held  and  enjoyed  as  such  by  custom 
and  usages  of  the  country.  No  pmver  is  give7i  to  any  man 
or  body  of  men  to  discriminate.  We  hold  our  property  inde- 
pendently of  the  varying  and  sometimes  capricious  estimates  of 
our  fellow  men.  So  universal  has  been  the  sentiment  in  favor 
»f  the  right,  and  the  determination  to  support  it,  that   the   act 


216  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Toynbee. 

in  question  is,  Avitli  a  single  exception,  the  only  instance  of  an 
attempt  to  legislate  any  species  of  property  substantially  out 
of  existence.  The  exception  to  which  I  allude,  is  the  original 
abolition  of  slavery  by  statute.  That  institution,  hoAvever,  did 
not  exist,  nor  were  slaves  considered  as  property  at  common 
law.  If  they  had  been  it  might  have  been  a  grave  question 
whether  their  owners  could  have  been  deprived  even  of  such 
property  without  compensation.  But  at  any  rate,  that  was 
an  extraordinary  case,  having  reference  to  what  was  generally 
admitted  to  be  the  original  rights  of  man,  w^hich  the  statute 
was  designed  to  enforce,  and  cannot  be  considered  as  a  sanction 
for  the  violation  of  the  constitutional  protection  of  property. 
The  protection  of  any  species  of  property  must  necessarily  ex- 
tend to  its  essential  and  definitive  characteristics,  especially 
those  which  constitute  its  main  value.  Otherwise  it  might  be 
rendered  useless  in  the  hands  of  the  possessor,  and  its  protec- 
tion would  be  wholly  illusory.  One  of  the  essential  characteris- 
tics of  property  is  its  vendibleness,  especially  for  the  principal  use 
to  which  it  can  be  appropriated.  That  necessarily  results  from 
the  despotic  dominion  over  it  which  Blackstone  ascribes  to  the 
possessor.  Chancellor  Kent  says.  (2  Com.  319,)  that  the  exclu- 
sive right  of  using  and  transferring  property  follows  as  a  natural 
consequence  from  the  perception  and  admission  of  the  right 
itself,  and  for  this  he  quotes  Grotius,  [h.  2,ch.  6,  §  1.)  And  again 
the  same  learned  commentator  says,  [/).  320,  vol.  2,)  "  The  power 
of  aUenntion  of  property  is  a  necessary  incident  to  tJie  right, 
and  was  dictated  by  mutual  convenience  and  mutual  wants." 
This  is  so  entirely  in  accordance  with  the  general  sentiment  of 
mankind  and  the  univ  ersal  practice,  that  it  cannot  bo  disputed  : 
so  far  as  my  information  or  recollection  extends,  the  present  is 
the  first  and  only  aittempt  to  interfere  with,  and  prevent  the 
general  right  of  sale  of  any  species  of  property.  That  the 
manner  of  selling  it  may  be  regulated  so  long  as  the  right  is 
essentially  preserved,  there  can  be  no  doubt.  It  is  upon  this 
principle  that  our  former  laws  regulating  the  sales  of  spirituous 
liquors  were  passed.  They  were,  however,  by  no  nr.eans  pro- 
hibitory of  the   right.     Every   man   was  at  liberty   to   sell  in 


DUTCHESS— JULY,  1855.  21 


The  People  v.  Toynbee. 


quantities  exceeding  five  gallons,  and  a  selected  class  in  any 
quantity.  Upon  the  same  principle  sales  at  auction  of  goods 
generally,  sales  by  peddlers,  and  sales  by  apothecaries  of 
poisonous  drugs  have  been  regulated,  and  sales  of  deteriorated 
and  unwholesome  provisions  have  been  prohibited.  These  were 
merely  police  regulations,  and  it  did  not  interfere  with  the  ordi- 
nary sale  of  any  property  in  its  appropriate  condition.  So,  too. 
it  is  competent  for  the  legislature  to  prohibit  the  abuse  of  prop- 
erty so  as  to  make  it  peculiarly  dangerous  or  deleterious  to 
society.  It  is  on  this  principle  that  laws  have  been  passed  to 
prevent  the  storing  of  gunpowder  in  cities,  to  regulate  the  con- 
struction of  buildings  so  as  to  prevent  unnecessary  exposure  of 
lives  in  crowded  places,  and  to  suppress  gambling  in  lotteries 
or  otherwise.  In  none  of  these  instances  is  there  any  interfer- 
ence with  the  ordinary  use  of  property.  There  is  also  a  power  to 
prevent  or  abate  nuisances.  But  to  that  there  must  necessarily 
be  a  limit.  It  cannot  be  extended  to  the  general  destruction  of 
any  species  of  property,  or  of  its  organic  characteristics.  If  it 
could  go  thus  far  none  would  be  safe,  The  use  of  animal  food, 
tea,  coffee  and  fruits,  each  of  which  is  considered  by  many  to  be 
deleterious,  might  be  prohibited.  As  the  legislature  has  con- 
fessedly the  power  to  adopt  police  regulations  so  as  to  prevent 
the^  abuses  of  property,  it  may  be  asked  where  are  the  limits  to 
which  it  can  be  legitimately  applied,  and  by  whom  are  such  limits 
to  be  prescribed  ?  It  may  be  very  diiSficult  in  many  cases  to 
draw  the  line,  but  that  can  be  no  reason  for  claiming  an  un- 
limited power.  The  right  is  simply  one  of  regulation,  not  of 
destruction.  When  an  enactment  is  clearly  destructive  of  a 
right,  and  not  simply  reformatory  of  its  abuses,  there  can  be 
no  question  as  to  its  invalidity.  There  is  no  reason  for  claim- 
ing discretionary  power  in  such  cases.  That  can  be  invoked 
only  in  cases  of  doubt.  It  can  be  no  sufficient  reason  for  act- 
ing clearly  wrong  in  any  particular  matter  that  the  exact  line  of 
separation  between  the  right  and  the  wrong  cannot  be  easily 
'defined.  Upon  the  whole,  my  impression  is  that  the  right  of 
property  extends  not  only  to  its  corpus,  but  to  its  ordinary  and 
essential  characteristics,  of  which  the  right  of  sale  is  one,  and 
Vol.  XX.  28 


•218  CASES  IX  THE  SUPREME  COT.'RT 


The  People  v.  Toyubee. 


that  it  can  be  controlled  only  so   far  as  to  prevent  its  abuse, 
without  destroying  such  characteristics. 

It  must  be  conceded  that  an  unlimited  and  unrestricted  power 
to  take  the  life,  the  liberty,  or  the  property  of  our  fellow  man,  is 
despotic.  And  it  matters  not  whether  it  is  lodged  in  the  hands 
of  one  or  many,  or  whether  the  depositories  are  elective  or  hered 
itary,  the  character  is  the  same.  It  was  contended  on  the 
argument  by  the  counsel  for  the  people,  that  the  legislature  of 
this  state  possess  despotic  legislative  power  by  reason  of  the 
general  constitutional  grant.  To  that  I  cannot  assent.  It  is 
undoubtedly  true  that  absolute  power  exists  originally  in  the 
people  cdnstituting  a  distinct  and  separate  community.  It  is 
competent  for  them  to  establish  for  themselves  a  despotic  govern- 
ment in  one  man,  or  many  men,  if  they  should  choose  to  do  so, 
although  an  intention  to  confer  absolute  power  can  never  be  infer- 
red, and  certainly  not  in  a  country  claiming  to  be  free.  But  the 
people  of  this  state  when  they  entered  the  union  deprived  them- 
selves of  the  power  of  establishing  any  other  than  a  republican 
form  of  government.  {Const,  of  U.  S.  art.  4,  §  4.)  There 
is  not,  perhaps,  any  very  accurate  description  of  a  republican 
form  of  government,  but  it  is  generally  understood  that  it  can- 
not be  subject  to  a  despotism  in  any  of  its  public  functionaries. 
The  man  who  is  the  subject  of  despotic  power,  and  I  care  not 
whether  it  be  in  the  legislative  or  executive  department,  is  a 
slave  and  not  a  republican.  Liberty  and  despotism  can  never 
exist  together.  No  general  grant  would  confer  an  unlimited 
power  over  the  lives,  the  liberty,  or  the  property  of  the  citizen. 
It  was  well  remarked  by  Judge  Story  in  Wilkinson  v.  Leland, 
(2  Peters,  657,)  that  '"the  fundamental  maxims  of  a  free  gov- 
ernment seem  to  require  that  the  rights  of  personal  liberty  and 
private  property  should  be  held  sacred.  At  least,  no  court  of 
justice  in  this  country  would  be  warranted  in  assuming  that 
the  power  to  violate  and  disregard  them — a  power  so  repugnant 
to  the  common  principles  of  justice  and  civil  libert}^ — lurked 
under. any  general  grant  of  legislative  authority,  or  ought  to  be 
implied  from  any  general  expressions  of  the  will  of  the  people.'' 
And  Judge   Bronson  said  in  7'aylor  v.  Porter,  (4  Hill,  145,) 


DUTCHESS-  JULY,  1855.  219 


The  People  v.  Toj'nbee. 


'The  security  of  life,  liberty  and  property,  lies  at  the  founda- 
tion of  the  social  compact,  and  to  say  that  tho  grant  of  legislative 
power  includes  the  right  to  attack  private  property,  is  equiva- 
lent  to  saying  that  the  people  have  delegated  to  their  servants  the 
power  of  defeating  one  of  the  great  ends  for  which  the  govern- 
ment was  established.  If  there  was  not  one  word  of  qualifi- 
cation in  the  whole  instrument,  I  should  feel  great  difficulty  in 
bringing  myself  to  the  conclusion  that  the  clause  under  consid 
eration,"  (conferring  legislative  power  in  general  terms,)  "  cloth- 
ed the  legislature  with  despotic  power.  Neither  life,  liberty, 
7ior  property,  except  tchen  forfeited  by  crime,  or  lohen  the 
latter  is  taken  for  public  use.  falls  within  the  scope  of  the 
poiver."  But,  as  I  have  already  remarked,  the  constitution  of 
this  state  provides  expressly  that  no  person  shall  be  deprived 
of  life,  liberty  or  property  without  due  process  of  law.  This 
provision  is  general  and  applies  to  and  of  course  limits  the  power 
of  the  legislature.  That  body  can  no  more  deprive  any  one  of 
his  property  without  due  process  of  lajv  than  can  a  private 
individual.  An  act  of  the  legislature  is  not  the  due  process  of 
law  mentioned  in  the  constitution.  Those  words,  as  was  remark- 
ed by  Judge  Bronson,  in  the  case  last  cited,  "  cannot  mean  less 
than  a  prosecution  or  suit  instituted  and  conducted  according 
to  the  prescribed  forms  and  solemnities  for  ascertainitig  guilt 
or  determining  the  title  to  property."  In  other  words,  a  man 
cannot  be  legislated  out  of  his  life,  liberty  or  property. 

That  intoxicating  liquors  were  pi'operty  at  the  time  of  the 
adoption  of  our  state  constitution  there  can  be  no  doubt.  They 
had  been  for  many  ages  in  general  use,  as  well  by  the  prudent 
and  the  virtuous  as  by  the  reckless  and  the  vicious.  To  have 
denied  to  the  farmer  his  cheerful  glass  of  cider,  or  to  the  labor- 
ing man  when  worn  down  with  fatigue,  the  support  of  his  cus- 
tomary restorative,  would  have  excited  as  much  astonishment 
and  created  as  much  resistance  in  the  old  time,  as  would  the 
denial  of  tea  or  coffee  to  our  ladies  at  the  present  day.  Wheth- 
er those  who  have  gone  before  us,  including  the  greatest,  wisest 
and  best  of  their  days,  were  right  in  thus  indulging  their 
tastes,  or  whether  their  conduct  was  indiscreet   and  deserved 


220  CASES  n<  THE  supreme  cocrt. 

The  People  v.  Toynbee. 

to  be  characterized  as  criminal,  according  to  the  opinion  of 
modern  reformers,  are  not  questions  for  the  consideration  of 
the  judiciary.  I  allude  to  the  former  practice  to  show  that 
intoxicating  liquors  were  property  with  the  general  assent  of 
mankind. 

It  was  said  by  Chief  Justice  Taney,  in  the  license  cases  from 
Jlhode  Island,  New  Plampshire  and  Massachusetts,  (5  Hoioard, 
577',)  that  "  spirits  and  distilled  liquors  are  universally  admitted 
to  be  subjects  of  ownership  and  property,  and  therefore  subjects 
of  exchange,  barter  and  traffic,  like  any  other  commodity  in 
which  a  right  of  property  exists  ;"  and  Catron,  J.,  remarked,  in 
the  same  c;ises,  that  "  ardent  spirits  have  been  for  ages  and 
now  are  sul)jects  of  sale,  and  of  lawful  commerce,  and  that  of 
a  large  class  throughout  the  civilized  world,  is  not  open  to  con- 
troversy. So  our  commercial  treaties  with  foreign  powers  de- 
clare them  to  be,  and  so  the  dealings  in  them  among  the  states 
of  this  union  recognize  them  to  be."  That  such  liquors  are 
property  still  admits  of  no  doubt.  Their  importation  from  for- 
eign countries  is  expressly  sanctioned,  and  they  are  heavily 
taxed  by  congressional  legislation.  If  the  acts  of  congi-ess  had 
been  legitimately  passed  by  the  legislature  of  this  state,  we 
should  have  been  virtually  precluded  from  denying  the  charac- 
teristics'of  property  to  what  we  had  directly  admitted  within 
our  borders  and  sul)jccted  to  taxation.  The  faith  of  states,  which 
should  ever  be  preserved  inviolate,  would  have  forbidden  it.  We 
are  equally,  though  possibly  not  as  directly,  concluded  by  the 
acts  of  a  general  government,  of  which  by  our  own  volition  we 
are  a  member.  Intoxicating  liquors  are  still  freely  admitted 
and  heavily  taxed  ;  and  their  sale  by  the  importer,  while  in  the 
cask  or  vessel  in  which  they  were  introduced  into  the  country, 
and  their  purchase  by  any  one,  are  authorized  beyond  the  reach 
of  state  legislation.  It  is  true  that  their  subsequent  sale  was. 
at  the  time  of  tlie  adoption  of  our  state  constitution,  subject — 
and  no  doubt  lawfully  sul)ject — to  the  regulations  contained  in 
our  excise  laws.  The  supreme  court  of  the  United  States  has 
decided,  on  various  occasions,  that  state  laws  regulating  sales  of 
intoxicating  liquors  are  not  prohibited   by  the  constitution  oi 


DUTCHESS— JULY,    1855.  /  £21 


The  People  v.  Toynbee. 


laws  of  the  United  States.  Some  of  the  judges,  in  the  license 
cases  from  three  of  the  New  England  states  to  which  I  have 
alluded,  expressed  opinions  that  state  laws  prohibiting  entirely 
the  sale  of  intoxicating  liquors,  might  not  conflict  with  the 
powers  conferred  upon  and  exercised  by  the  general  govern- 
ment ;  but  the  decision  of  that  question  was  unnecessary,  as  it 
was  admitted  by  the  judges  that  the  statutes  of  those  states 
were  not  prohibitory.  The  remarks  of  those  learned  judges  as 
to  the  right  of  the  states  to  pass  laws  prohibiting  the  sale  of 
foreign  liquors,  had  no  reference  to  the  limitation  of  the  power 
of  the  legislature  of  the  states  by  their  own  constitutions  ;  and, 
besides,  they  were  mere  obiter  dicta,  as  they  were  upon  a  ques- 
tion not  at  all  involved  in  the  cases  before  them,  and  would  not, 
according  to  a  rule  they  had  laid  down  for  their  own  conduct, 
at  all  control  them  or  the  court  of  which  they  were  members, 
in  any  future  determination.  From  the  considerations  to  which 
I  have  alluded,  I  have  no  doubt  but  that  .imported  liquors  are 
still,  as  they  always  have  been,  property. 

As  to  liquors  of  domestic  origin,  there  are  other  and  possibly 
more  difficult  questions.  The  control  of  the  state  over  them 
has  not  been,  nor  unless  they  are  introduced  from  other  states 
can  it  be,  subject  to  congressional  legislation.  Whether  it  is 
competent  for  the  legislature  to  prohibit  their  manufacture  in 
this  state,  is  not  now  a  question,  as  that  has  not  been  done. 
They  can  yet  be  lawfully  manufactured,  and  when  manufactured 
are  still  property,  and  as  such  are,  equally  with  imported  liquors, 
protected  by  the  a6gis  interposed  by  our  state  constitution. 

It  is  clear,  as  I  have  before  intimated,  that  the  protection  to 
property  extends  to  and  includes  its  generally  conceded  charac- 
teristics, especially  those  without  which  it  would  be  valueless ; 
otherwise  it  would  be  but  nominal  and  scarcely  that.  It  was 
contended,  however,  by  the  counsel  for  the  people,  that  the  sale 
of  intoxicating  liquors  was  not  prohibited  by  the  statute  ;  that 
any  of  them  might  be  sold  for  medicinal,  manufacturing  and 
sacramental  purposes,  and  that  foreign  liquors  might  be  sold  by 
the  importers,  in  the  orignal  cask  or  vessel,  to  any  one.  The 
permitted  sales  would  be  very  inconsiderable.     And  the  statute 


2j>2  cases  in  the  supreme  court. 

The  People  v.  Tojnibeo. 

if  carried  into  full  and  its  designed  operation  would  effectually 
prevent  its  use  as  an  ordinary  beverage  by  the  great  mass  of 
the  people — the  use  for  which  it  was  mainly  designed,  and  with- 
out which  it  would  be  of  little  or  no  value.  It  might  be  acces- 
sible  to  the  wealthy,  but  would  be  unattainable  by  men  of  mod- 
erate means.  That  would  create  a  distinction  between  the  rich 
and  the  poor  which  should  ever  be  avoided  in  legislation,  if  it  is 
desirable  that  our  laws  should  be  respected  or  enforced.  It  is 
no  matter  what  may  be  the  pretense,  the  denial  would  be  a  re- 
striction;  and  that  to  be  just,  should  operate  upon  all ;  if  not 
equally,  the  inequality  should  not  be  the  direct  and  palpable 
effect  of  the  statute.  I  consider  the  statute  in  question  as 
mainly  prohibiting  the  sale  of  intoxicating  liquors  as  a  bever- 
age, and  destructive  of  its  principal  value,  and  with  that  im- 
pression I  must  adjudge  it  to  be  null  and  void  to  that  extent. 

The  inviolability  of  the  rights  of  private  property  is  subject 
to  the  prerogative  resulting  from  the  eminent  domain  always 
existing  in  the  sovereign  power  to  take  it  for  public  purposes, 
on  paying  an  adequate  compensation  to  the  owner.  But  the 
compensation  must  consist  of  a  direct  and  specific  remunera- 
tion, and  not  merely  of  the  general  good  conferred  upon  the 
community  by  the  passage  of  a  beneficent  laAv.  The  prohibi- 
tory law  does  not,  nor  from  the  nature  of  the  case  could  it, 
make  any  direct  compensation  to  the  owners  for  the  property 
which  it  is  proposed  to  sacrifice.  So,  too,  there  is  necessarily 
reserved  the  right  of  taxation  ;  but  the  exercise  of  such  right, 
although  it  requires  the  contribution  of  a  portion  of  what  be- 
longs to  the  citizen,  in  effect  rather  increases  than  diminishes 
the  value  of  the  entire  property,  by  the  security  which  it  en- 
ables the  public  to  give  to  all  that  is  retained. 

The  interest  in  the  question  as  to  the  validity  of  the  prohib- 
itory law  is  not  confineil  to  those  only  who  may  own  the  prop- 
erty Avhich  it  is  proposed  in  effect  to  render  unavailable  to  the 
proprietor  ;  it  extends  to  the  entire  community.  If  the  shield 
of  constitutional  protection  can  be  withdrawn  from  one  species 
of  property,  any  other  may  be  successfully  assailed  under  some 
specious  pretenses,  or  indeed  without  any  at  all.     It  is  by  no 


DUTCHESS— JULY,  1855.  223 


The  People  v.  Toynbee. 


,  means  a  suiScient  answer  to  this  to  say  that  the  power  over 
property,  which  is  now  claimed  in  behalf  of  the  legislature, 
would  not  be  liable  to  abuse,  inasmuch  as  the  members  are  elect- 
ed by  the  people,  with  whom  they  retain  a  community  of  interests, 
as  they  enjoy  but  a  short  term  of  office,  and  must  soon  return 
to  the  ranks  of  private  life.  The  patriots  of  the  revolution 
who  formed  our  national  constitution,  and  the  enlightened  mem- 
bers of  the  convention  which  adopted  our  state  constitution, 
thought  otherwise,  and  accordingly  limited  the  power  of  the 
legislature  expressly  in  several  important  particulars,  and  by 
implication  in  many  others.  They  no  doubt  thought,  and  right- 
ly thought,  that  the  possession  of  despotic  power  by  any  de- 
partment of  our  government  would  be  inconsistent  with  our  free 
institutions,  and  that  the  safety  of  our  lives,  our  liberty  and 
our  propert}',  required  that  they  should  not  be  subjected  to  the 
arbitrary  disposal  or  control  of  any  man  or  set  of  men. 

It  may  be  that  the  ordinary  use  of  intoxicating  drinks  neces- 
sarily leads  to  their  frequent  abuse,  and  that  the  interests  of 
society  require  that  property  in  them  should  be  in  effect  annihi- 
lated. If  so,  they  might,  and  possibly  should,  be  withdraAvn  from 
the  pale  of  constitutional  protection.  But  that  has  not  yet 
been  done,  nor  can  it  be  done  by  any  other  power  than  that  by 
which  our  organic  laws  were  ordained.  Whatever  those  insti- 
tutions require,  the  court  must  award,  as  it  is  the  duty  of  the 
judges,  imposed  upon  them  by  their  official  position,  and  under 
the  solemnity  of  an  oath,  to  support  the  constitution  of  our 
common  country,  and  of  our  own  state,  from  whatever  quarter 
or  under  whatever  pretense  they  may  be  assailed. 

I  have  not  the  slightest  wish  to  extend  any  protection  or  en- 
couragement to  the  habit  of  inebriation,  or  to  throw  any  im- 
pediment in  the  way  of  the  good  and  the  virtuous  who  are  so 
solicitous  to  arrest  its  progress.  It  is  an  abomination,  and 
should  be  suppressed  (so  far  as  human  means  can  do  it)  by  pre- 
cept, by  example,  and  by  legitimate  legislation.  But  we  should 
go  no  further,  lest  we  "  do  evil  that  good  might  come."  The 
injunction  against  that  is  wise  ;  as  the  evil  is  certain,  while  the 
production  of  the  good  might  be,  at  least,  problematical. 


224  OASES  IN  THE  SUPREME  COURT. 

The  People  v.  Berberrich. 

The  judgment  in  the  court  below  being  erroneous,  it  must  oe 
reversed. 

Rockwell,  J.,  dissented  from  so  much  of  the  above  opinions 
as  relates  to  the  unconstitutionality  of  the  act,    (See  next  case.) 

Judgments  reversed. 

[Dutchess  General  Term,   July  21,  1855.     Brotvn,    S.  B.  Strong   and 
Rockwell,  Justices.] 


The  People,  on  the  complaint  of  John  E.  Vassar,  vs.  Philip 
Berberrich. 

Where  an  individital  is  brought  before  a  magistrate,  upon  a  warrant  issued  for  a 
violation  of  the  act  of  April  9,  1855,  "  for  the  prevention  of  intemperance, 
pauperism  and  crime,"  the  magistrate  should  take  his  examination ;  and  if, 
upon  such  examination,  it  appears  that  no  offense  has  been  committed,  or  that 
there  is  no  probable  cause  for  charging  the  accusefl  therewith,  he  should  bo 
discharged.  If  there  is  probable  cause  to  believe  the  defendant  guilty,  bail 
should  be  taken,  if  offered  by  the  defendant,  for  his  appearance  at  the  next 
court  having  cognizance  of  the  offense. 

The  legislature  did  not  intend,  by  that  act,  to  extend  the  jurisdiction  of  courts 
of  special  sessions  so  far  as  to  compel  persons  accused  of  offenses  against  the 
act,  to  submit  to  a  trial  before  that  tribunal  in  cases  where  the  accused  si  ould 
oflfer  bail  for  their  appearance  at  the  next  cuurt  of  sessions  or  oyer  and  terminer 
at  all  events. 

A  court  of  special  sessions  is  one  of  limited  jurisdiction,  deriving  all  its  power 
from  the  statute.  It  can  only  acquire  jurisdiction  over  the  person  of  the  ac- 
cused upon  his  request,  to  be  tried  before  it,  or  his  omission,  for  24  hours  after 
being  required  to  do  so,  to  give  bail  for  his  api)earance  according  tc  law. 

CERTIORARI  to  a  court  of  special  sessions  held  by  the 
county  judge  of  Dutchess  county,  to  remove  a  conviction  of 
the  defendant,  for  a  violation  of  the  prohibitory  liquor  law,  vc 
selling  intoxicating  liquor. 


DUTCHESS— JULY,  1855.  226 


The  People  v.  Berberrich. 


1 

T.  C.  Cwmphell  and  John  Thompson,  for  the  people.  I.  In 
(lecidinof  the  case  and  determining  what  ouffht  to  be  done,  the 
rules  as  to  habeas  corpus  apply  fully  to  certiorari.    (2  R.  S.  564.) 

II.  No  person  can  sue  out  this  writ,  except  he  is  committed, 
detained,  confined,  or  in  some  way  actually  restrained  of  his  lib- 
erty. If  his  object  is  to  review  the  proceedings  of  courts,  or 
the  sufficiency  of  papers,  his  remedy  is  by  appeal  or  common 
law  certiorari.  (2  R.  S.  564,  §  35.  Mercein  v.  The  People, 
25   Wend.  89.     3  Hill,  399.) 

III.  Nothing  can  be  reviewed  on  this  writ  except  the  suffi- 
ciency of  the  warrant,  and  whether  the  county  judge  had  color- 
able authority  to  issue  it ;  and  the  fact  whether  the  law  is  consti- 
(Utional  cannot  properly  be  decided  here  by  this  court.  {In  the 
matter  of  Priine,  1  Barb.  S.  C.  R.  340,  ^c.  People  v.  Cas- 
sels,  5  Hill,  167,  168.  Note  to  3  Hill,  659  Bennac  v.  The 
People,  4  Barb.  33.) 

IV.  Is  the  law  constitutional  under  which  the  county  judgQ> 
proceeded  and  the  warrant  was  issued  7     1.  The  power  to  majte- 
laws,  in  this  state,  is  exclusively  in  the  legislature.     [See  <mp#. 
o  of  the  Constitution,  sec.  1,  1846.     Also,  see  art.  1  ofthesetme 
Const,  sec.  17.)     The  people  can  make  no  law,  repeal  no  law, 
enact  no  law ;  they  have  surrendered  all  their  power  into  the 
hands  and  keeping  of  the  legislature.     The  people  have  surren- 
dered their  rights  as  individuals  to  government,  for  the  purpose- 
of  gaining  greater  rights  from  government.     (2'  Kenfs  Conti 
448.)     2.  What  is  the  limit  of  this  legislative  power?    We  say 
there  is  no  limit,  except  the  constitution.     This  nittst  of  neces- 
sity be  so  in  all    constitutional   governments.      The  legislature 
are  made  the  judges  of  the  expediency  of  a  law,  and  are  quite 
as  good  judges  as  the  people  at  large.      The  jiidieiary^  are  never 
to  judge  of  the  expedieitcy  of  a  law.     (2  Kent,  448.     Butler 
V.   Palmer,  1  Hill,  329.     Charles  River  Bridge  ^■v  Warren 
Bridge,  11  Pick.  420.     Cochran  v.  Van  Surlai/,  20  Wen(f 
381.)     3.  If  then  this  act  does  not  violate  some  of  the  express- 
provisions  of  the  constitution  of  the  state  of  New  York,  it  is  a 
legal  and  binding  act,  and  the  judiciary  cannot  declare  it  uncon* 

Vol.  XX.  29  ' 


226  CASES  m  toe  supreme  court. 

The  People  v.  Berberrich. 

, ^ 

stitutional  because  it   is  deemed  inexpedient  or  distasteful  to 
them. 

V.  The  act  is  said  to  violate  directly  the  constitution  of  the 
state  of  New  York.  1.  It  deprives  the  accused  of  the  common 
law  right  to  a  trial  by  a  jury  of  twelve  men.  The  provision  of 
the  constitution  of  1846  on  this  subject  is  as  follows  :  ';  The  trial 
by  jury  in  all  cases  in  which  it  has  been  her<5tofore  used  shall 
remain  inviolate  forever."  {ArL  1,  sec.  2.)  The  provision  of 
the  constitution  of  1822  is  as  follows,  (being  the  same  precisely,) 
(See  Const,  of  1S22,  sec.  11,  art.  7.)  The  provision  in  the 
constitution  of  1777  is  the  same  in  substance.  (See  Const,  of 
1777,  sec.  41.)  These  constitutional  provisions  following  one 
after  the  other  the  same  in  each  constitution  in  substance,  onli/ 
presei've  this  right  in  those  cases  in  which  it  has  been  hereto- 
fore nsed,  not  in  every  case,  not  in  any  unless  it  has  been  here- 
tofore used.  2.  Trial  by  jury  has  not  been  used  in  this  state 
before  the  constitution  in  any  cases  where  the  offense  was  under 
the  grade  of  grand  larceny,  till  the  creation  of  the  court  of  spe- 
cial sessions  in  1824.  And  these  provisions  of  the  constitution 
are  deemed  to  have  been  made  recognizing  that  fact.  The  right 
therefore  of  a  trial  by  jury  in  no  case  under  grand  larceny  can 
be  claimed  as  a  constitutional  right,  It  has  been  given  as  a 
matter  of  justice,  and  a  favor  on  account  of  our  tenderjiess  to- 
wards liberty.  (People  v.  Goodwin,  5  Wend.  251.  Murphy 
v.  The  People,  2  CoiDen,  817,  and  the  statute  and  decisions 
there  cited.)  3.  The  act  giving  a  trial  by  jury  in  cases  of  all 
misdemeanors,  and  creating  a  court  of  special  sessions,  was  passed 
in  1834,  and  the  most  that  could  be  claimed  would  be  that  the 
right  of  a  trial  by  jury  was  secured  in  such  cases  by  implica- 
tion. If  this  is  so,  the  trial  by  jury  secured  at  the  time  of  the 
passage  of  the  last  constitution  in  such  cases  is  given,  to  wit,  a 
jury  of  six  men.  {In  the  matter  of  Newell  Smith,  10  Wend.  449. 
Cntg-er  v.  The  Hudson  River  R.  R.,  2  ^em,  199.)  4.  It  is 
•^aid  to  violate  expressly  the  provision  of  the  constitution  that 
•'  no  person  shall  bo  held  to  answer  for  a  capital  or  otherwise 
infamous  f rime,  unless  on  presentment  or  indictment  of  a  grand 
jury."     W*e  say  the  crime  in  question  is  not  an  infamous  crime 


DUTCHESS— J  CLY,  1855.  227 


The  People  v.  BerbeiriclK 


No  common  laAV  misdemeanor  was  at  common  law  an  infamous 
crime.  This  question  is  forever  put  to  rest  by  the  provisions 
of  our  constitution,  and  the  revised  statutes.  (2  R.  S.  p.  707.) 
"  Whenever  infamous  crime  is  used  in  any  statute,  it  shall  be 
construed  as  including  every  offense  punishable  with  death  or 
by  imprisonment  in  a  state  prison,  and  no  other.  This  same 
statute  {Id.  702.)  was  in  force  before  the  adoption  of  the  consti- 
tutions of  1822  and  1846,  and  according  to  every  rule  of  inter- 
pretation of  those  instruments  they  must  be  deemed  to  have 
been  passed  with  reference  to  this  statute.  This  interpretation 
is  strengthened  by  the  fact  that  the  words  of  the  constitution 
are  "  capital  or  otherAvise  infamous  crime."  5.  It  is  said  the 
act  itself  violates  the  constitution,  and  convicts  a  man  of  an  in- 
fiimous  crime  without  trying  him  by  a  jury,  and  without  giving 
the  benefit  of  a  presentment  of  a  grand  jury,  by  excluding  per- 
sons from  sitting  as  jurors.  This  we  deny.  The  provision  does 
not  render  the  person  infamous  or  subject  him  to  a  single  pen- 
alty attached  to  the  conviction  of  an  infamous  crime.  What  are 
those  penalties  ?  They  are,  (1.)  The  person  cannot  be  allowed  to 
testify  in  a  court  of  justice.  (2  R.  S.  701,  §  27.)  (2.)  He  is  de- 
prived of  the  right  of  suffrage.  (1  R.  S.  ^th  ed.  337.)  All 
other  rights,  persons  convicted  of  infamous  crimes  enjoy,  with 
oth.er  citizens.  This  provision,  therefore,  of  excluding  certain 
persons  from  acting  as  jurors,  does  not  charge  a  person  with  any 
crime,  or  hold  him  to  answer  for  one,  in  any  sense  whatever.  It 
merely  excludes  a  man  because  by  interest  he  is  incompetent, 
and  nothing  more;  a  right  which  the  legislature  have  always 
had  and  executed.  {la  the  matter  of  ^mith^  10  Wend.  449. 
20  John.  460.)  6.  The  law  is  said  to  be  unconstitutional,  be- 
cause a  state  cannot  pass  a  law  prohibiting  the  sale  of  personal 
property.  We  affirm  it  is  perfectly  proper  to  do  so,  and  that 
the  right  exists  of  necessity  in  all  governments.  If  it  is  thus 
unconstitutional,  it  must  be  a  violation  of  the  spirit  of  the 
constitution  and  not  the  letter.  The  constitution  does  not 
prohibit  the  legislature  from  making  illegal  the  sale  of  property, 
in  words.  The  relator  claims  it  is  not  lawful  to  pass  such  an  act. 
(1.)  Because  it  is  an  infringement  of  private  rights.     It  does  not 


228  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Cerbeirich. 

infringe  upon  such  rights.  A  man  can  drink  as  much  as  he 
pleases,  and  when  and  where  he  pleases,  un<ler  this  law.  It 
only  prevents  one  man  sellmg  or  giving  it  to  another,  Avhich  ii 
not  a  private  right.  The  law  is  a  mere  police  regulation,  which 
every  state  has  a  right  to  make.  (5  How.  U.  S.  Rep.  573.) 
All  the  judges'  opinions  in  the  three  cases  there  heard  together. 
(2.)  This  is  not  a  prohibitory  law.  It  docs  not  prohibit  but  only 
regulate  and  confine  the  sale.  7.  It  is  insisted  that  the  act 
violates  the  constitution  of  the  United  States  by  preventing  the 
sale  of  imported  liquors  freely.  The  United  States  can  only 
claim  the  right  of  a  sale  by  the  importer  in  the  original  pack- 
age, and  this  is  secured  to  him  by  the  present  law  (^Opinion  of 
Taney,  Ck.  J.,  5  Howard,  573  to  575  ;  of  McLean,  J.,  Id.  589  ; 
of  Woodbury,  /.,  Id.  620  ;  of  Grier,  J.,  Id.  631.) 

VI.  The  opponents  of  the  act  claim  that  the  exception  contain- 
ed in  the  1st  section  of  the  act  renders  the  sale  of  all  imported 
liquors,  every  where,  lawful,  and  renders  it  necessary  for  the 
prosecution  to  aver  in  the  complaint  that  the  liquor  was  not  im- 
ported. That  exception  is  as  follows,  viz :  "  This  section  shall 
not  apply  to  liquor  the  right  to  sell  which  in  this  state  is  given 
by  any  hnv  or  treaty  of  the  United  States."  1.  The  fair 
meaning  of  these  words  confines  the  exception  to  thos6  cases 
where  some  law  or  treaty  of  the  United  States  authorizes  the 
sale.  2.  As  there  is  no  such  law  or  treaty  which  permits  such 
sale,  the  section  is  not  altered  or  affected  by  the  exception.  The 
importer  would  have  a  right  to  sell  in  the  original  packages 
without  such  exception,  and  he  has  it  with  it.  •  3.  An  excep- 
tion which  is  not  a  part  of  the  act  itself  need  not  be  negatived, 
in  pleading ;  but  to  be  rendered  available  must  be  set  up  and 
proved  by  the  party  asking  its  aid.  {Gould's  PL  179.  Barb, 
Crim.  Law,  291.) 

J.  F.  Barnard  and  H.  A.  Nelson,  for  the  defendant. 

Rockwell,  J.  The  defendant  has  been  convicted  before  a 
court  of  special  sessions,  held  by  the  county  judge  of  Dutchess 
county^  of  having  sold  intoxicating  liquor  in  violation  of  the  act 


DUTCHESS— JULY,   1855.  229 


The  People  v.  Berberrich 


For  thf:  prjvention  of  intemperance,  pauperism  and  crime,  passed 
April  9,  1855.  It  is  claimed  that*  the  defendant  should  be  dis- 
charged from  custody. 

I.  Because  so  much  of  the  said  act  as  prohibits  the  sale  of 
intoxicating  liquor  is  void.  That  such  prohibition  is  an  unau- 
thorized invasion  of  private  rights,  and  a  violation  of  the  funda- 
mental law.  I  entertain  no  doubt  that  intoxicating  liquor  is 
property,  and  as  such  is  entitled  to  the  protection  of  law.  In 
my  opinion  much  labor,  learning  and  logic  have  been  wasted  in 
demonstrating  a  proposition  so  perfectly  obvious. 

The  right  of  property  is  protected  against  invasion  from  the 
legislative,  or  any  other  branch  of  the  government,  by  the  ex- 
press terins  of  the  constitution.  (Constitution,  art.  1,  j§  1,  6.) 
But  aside  from  this,  it  is  clear  that  under  every  free  govern- 
inent  there  are  certain  fundamental  and  inherent  rights  be 
longing  to  individuals  which  are  not  solely  dependent  upon  the 
will  of  the  legislature ;  and  it  is  unnecessary  to  examine  the 
written  constitution  of  the  state  to  ascertain  whether  they  are 
expressly  shielded  by  that  instrument  from  legislative  encroach- 
ment. The  right  of  personal  security,  of  personal  liberty,  and 
private  property,  do  not  depend  upon  the  constitution  for  their 
existence.  They  existed  before  the  constitution  was  made,  or 
the  government  was  organized.  These  are  what  are  termed 
the  absolute  rights  of  individuals,  which  belong  to  them  inde- 
pendently  of  all  government,  and  which  all  governments  which 
derive  their  powers  from  the  consent  of  the  governed,  were  in- 
stituted to  protect.  They  are  defined  as  follows  :  "  By  the 
absolute  rights  of  individuals  we  mean  those  which  are  so  in 
their  primary  and  strictest  sense,  such  as  would  belong  to  their 
persons  merely  in  a  state  of  nature,  and  which  every  man  is 
entitled  to  enjoy  whether  out  of  society  or  in  it."  (1  Black. 
Com.  123.) 

From  the  very  nature  of  our  government,  there  must  be  a 
limit  to  legislative  power.  The  ultimate  sovereignty  of  the 
Btate  is  in  the  people.  The  government,  in  all  its  departments, 
derives  its  just  powers  from  the  consent  of  the  governed.  The 
powers  of  the  legislature   are  not  original,  or  inherent,  but  are 


230  CASES  IN  THE  SUPEEME  COURT. 

The  People  v.  Berbenich. 

wholly  delegated  to  them  by  the  people.  These  powers  must 
be  exercised  under  such  restrictions  as  are  expressly  contained 
in  the  written  constitution  of  the  state,  or  as  are  necessarily 
implied  from  the  nature  and  object  of  the  trust  which  has  been 
confided  to  the  legislature  by  their  constituents.  It  is  con- 
tended that  the  powers  of  the  legislature  are  supreme,  except 
where  they  are  expressly  limited  by  the  constitution,  because 
the  constitution  expressly  confers  upon  the  senate  and  assembly 
all  the  legislative  power  of  the  state.  {Const,  art.  3,  §1.)  But 
this  assumes  that  there  is  no  limit  to  the  legislative  power  of  a 
free  state.  To  this  I  cannot  assent.  I  suppose  that  the  pow- 
ers of  the  legislature  are  necessaril}''  limited  to  those  objects 
for  which  the  government  was  instituted,  namely,  the  protection 
of  individuals  in  the  enjoyment  of  their  absolute  and  inaliena- 
ble rights ;  and  that  a  law  which  arbitrarily  and  unnecessarily 
contravenes  these  objects,  and  wantonly  strikes  down  private 
rights  instead  of  protecting  them,  is  beyond  the  scope  of  legis- 
lative competency,  and  is  void.  It  is  a  case  where  agents  have 
transcended  the  powers  conferred  upon  them  by  their  princi- 
pals, and  the  principals  are  not  bound  by  their  acts.  And  indi- 
viduals who  are  aggrieved  through  the  exercise  of  such  usurped 
powers  by  the  legislature,  are  entitled  to  the  protection  of  the 
judicial  department  of  the  government,  whose  peculiar  province 
it  is,  to  construe  laws  and  pronounce  upon  their  effect  and 
validity. 

But  while  the  absolute  rights  of  individuals  are  better  pro- 
tected, they  are  not  as  entirely  absolute  under  government,  as 
in  a  state  of  nature.  They  are  subservient  to  such  measures 
as  become  necessary  for  the  preservation  of  the  government,  its 
defense  against  external  or  internal  enemies,  or  the  promotion 
of  the  best  interests  of  the  whole  communit}'.  For  the  pro- 
tection of  the  government  against  external  danger,  individuals 
may  be  compelled  to  enter  the  military  service,  and  to  subject 
and  expose  themselves  to  the  hardships  and  perils  of  war. 
For  the  protection  of  society  against  the  consequences  of  crime, 
offenders  may  be  deprived  of  liberty,  property  or  life.  Luna- 
•iics  who  become  dangerous  to  others  may  be  imprisoned.     Per 


DUTCHESS— JULY,  1855.  231 


The  People  v.  Berberrich. 


sons  sick  of  contagious  diseases  may  be  removed  to,  and  placed 
in,  hospitals.  Propert}'-  may  be  removed  or  destroyed,  or  trades 
suppressed,  which  endanger  the  public  safety  or  health.  Prop- 
erty may  be  taken  from  individuals  in  the  form  of  taxes,  and 
applied  towards  the  support  of  the  government  and  its  insti- 
tutions. In  short,  government  is  not  to  be  restrained  in  the 
exercise  of  its  legitimate  powers,  which  are  essential  to  th(5 
public  welfare^  because  the  rights  of  individuals  will  be  injuri- 
ously affected  thereby. 

In  cases  where  private  property  is  directly  and  specifically 
taken  for  the  public  use,  compensation  must  be  made  to  the 
owner.  But  cases  are  constantly  occuring,  where  individuals  are 
subjected  to  great  and  ruinous  losses  of  property  through  the 
operation  of  public  measures  and  laws  ;  but  these  losses  being 
merely  consequential  and  incidental  to  the  exercise  of  the  legit- 
imate powers  of  the  legislature,  the  individual  injury  is  not 
the  subject  of  legal  redress.  Loss  to  individuals  other  than 
those  whose  property  is  directly  taken  and  applied  to  the  pub- 
lic use  frequently  results  from  the  grading  of  streets,  the  con- 
struction of  canals,  bridges,  ferries,  rail  roads  and  similar  im- 
provements ;  but  if  the  law-making  power,  in  the  exercise  of 
its  legitimate  discretion,  decides  that  such  improvements  are 
conducive  to  the  public  good,  no  individual,  whose  injuries  are 
consequential  merely,  will  be  permitted  to  arrest  the  action  of 
the  government,  or  will  even  be  entitled  to  compensation  for 
the  injury  which  he  may  sustain.  {RadcUff^s  Executors  v. 
The  Mayor  ^c.  of  Brooklyn,  4  Corns.  R  195.) 

We  may  assume  that  the  legislature  of  a  free  state  is  not 
competent  to  pass  a  tyrannical  law.  That  is,  one  which  restrains  i 
the  natural  rights  of  individuals,  for  any  other  purpose  than  to 
advance  some  public  good,  or  to  repress  some  public  evil.  The 
distinction  between  laws  which  are  tyrannical  because  they 
unnecessarily  infringe  upon  the  absolute  right  of  individuals, 
;>nd  those  which  are  consistent  with  civil  liberty,  although  in 
restraint  of  natural  liberty,  is  very  clearly  pointed  out  by 
Blackstone,  as  follows  : 

'*  Political  or  civil  liberty  which  is  that  of  a  member  of  socie- 


232  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Berbenich. 

ty,  is  no  other  than  natural  liberty,  so  far  restrained  by  humar 
laws  (and  no  further)  as  is  necessary  and  expedient  for  the  gen- 
eral advantage  of  the  public.  Hence  we  may  collect,  that  the 
law  which  restrains  a  man  from  doing  mischief  to  his  fellow 
citizens,  though  it  diminishes  the  natural,  increases  the  civil 
liberty  of  mankind  ;  but  that  every  wanton  and  causeless  re- 
straint of  the  will  of  the  subject,  whether  practiced  by  a  mon- 
arch, a  nobility,  or  a  popular  assembly,  is  a  degree  of  tyranny ; 
nay,  that  even  laws  themselves,  if  they  regulate  and  constrain 
our  conduct  in  matters  of  mere  indifference,  Avithout  any  good 
end  in  view,  are  regulations  destructive  of  liberty  ;  whereas,  if 
any  public  advantage  can  arise  from  observing  such  precepts, 
the  control  of  our  private  inclinations  in  one  or  two  particular 
points,  will  conduce  to  preserve  our  general  freedom  in  others 
of  more  importance  by  supporting  that  state  of  society  which 
alone  can  secure  our  independence."     {Black.  Com.  125.) 

The  following,  among  a  great  multitude  of  authorities,  estab- 
lish the  doctrine  that  private  property  is  held  in  subserviency 
to  such  laws  and  measures,  as  in  the  exigencies  of  society  be- 
come necessary  for  the  promotion  of  the  public  welfare.  {Stuy- 
vesant  v.  New  York,  7  Coiven,  588.  Vanderhilt  v.  Adams,  Id. 
349.  Comimmueallh  v.  Dana,  2  Mete.  329.  Mayor  ^"c.  v. 
Lord,  17  Wend.  285,  295  ;  S.  C.  in  error,  18  id.  12,0.  Stone  v. 
Mayor  ^c,  25  id.  157.     Russell  v.  /Same,  2  Denio,  461.) 

There  is  no  doubt  but  that  a  great  number  of  individuals  will 
sustain  serious  loss  of  property  and  derangement  of  business 
through  ihe  operation  of  the  prohibitory  feature  of  the  law  in 
question.  But  this  consideration  is  not  decisive  of  the  question 
of  legislative  competency.  The  question  still  remains ;  Was 
the  passage  of  the  act  an  exercise  of  the  legitimate  discretion 
and  power  of  the  legislature  founded  upon  considerations  of 
public  policy,  tending  to  promote  the  morals,  the  health  and 
safety  of  the  community,  or  was  it  a  mere  wanton  and  unneces- 
sary invasion  of  the  private  rights  of  individuals  ? 

Any  interference  with  the  right  of  property  is  not  the  prima- 
ry object  of  this  law.  Its  object  is  to  prevent  intemperance, 
pauperism  and  crime.     Surely,  these  are  proper  subjects  of  le- 


DUTCHESS— JULY,  1855.  233 


The  People  v.  Berberrich. 


^islation.  A  law  aiming  at  the  prevention  of  these  evils,  by 
regulating,  and  to  a  certain  extent  prohibiting,  the  sale  of  in- 
toxicating liquor,  has  long  existed  as  one  of  the  police  regula- 
tions of  the  state.  The  present  law  assumes  that  the  former 
law  has  been  found  insufficient  to  accomplish  the  ends  for  which 
it  was  designed.  That  the  reo;ulation  of  the  sale  of  intoxicating 
liquor  having. failed  to  suppress  intemperance,  pauperism  and 
crime,  and  the  public  evils  flowing  therefrom,  it  has  become 
necessary  to  try  what  virtue  there  is  in  prohibition. 

Whether  the  law  can  be  carried  into  effect ;  whether  the  whole 
result  will  not  be  a  mere  legislative  enactment  of  prohibition, 
without  the  power  of  enforcing  it  practically  ;  whether  the  evils- 
at  which  the  law  is  pointed  will  not  be  aggravated  instead  of 
suppressed,  are  matters  addressed  solely  to  the  discretion  of  the 
legislature,  and  with  Avhich  the  judicial  branch  of  the  govern- 
ment has  no  concern. 

The  objects  of  the  law  are  matters  in  which  the  whole  com- 
munity are  interested.  Drunkards,  paupers  and  criminals  are 
burdens  upon  the  public — enemies  to  the  peace,  welfare  and 
happiness  of  society.  Can  it  be  doubted  that  if  the  traffic  in  in- 
toxicating  liquor  was  entirely  suppressed,  their  number  would 
be  greatly  diminished  ?  It  is  enough,  to  uphold  this  law",  that 
its  tendency  is  to  prevent  the  public  evils  against  which  it  is 
directed,  and  to  promote  the  public  benefits  which  it  is  designed 
to  reauh.  It  is  not  difficult,  by  ignoring  the  whole  object  and 
purpose  of  the  law,  to  make  out  a  very  plausible  case  of  legis- 
lative encroachment  upon  private  rights.  But  this  is  not  a  just 
or  fair  mode  of  considering  it.  The  great  ends  of  public  policy 
which  it  was  intended  to  subserve,  are  clearly  within  the  scope 
of  legislative  competency.  The  public  evils  which  it  was  in- 
tended to  suppress,  are  the  most  formidable  to  the  peace  and 
welfare  of  society  which  those  who  make  or  administer  the  laws 
are  called  upon  to  encounter.  Assuming  that  the  legislature 
have  .acted  in  good  faith ;  that  they  have  not  wantonly  and 
unnecessarily  invaded  private  rights,  under  the  mere  pretense 
of  preventing  public  evils;  I  think  the  question,  whether  the 
public  'benefits  are  of  greater  weight  or  importance  than  the 

Vol.  XX.  30 


234        CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Btrberrich. 

individual  losses  which  will  result  from  the  prohibition  of  the 
sale  of  intoxicating  liquor  as  a  beverage,  is  one  of  legislative 
discretion,  and  with  which  the  judiciary  has  no  concern.  It 
was  for  the  legislature  to  determine  to  what  extent  it  was  ne- 
cessary to  interfere  with  private  rights,  in  order  to  accomplish 
the  great  ends  of  public  policy  which  they  had  in  view  ;  to 
array  on  the  one  side  the  serious  loss  of  property  and  derange* 
ment  of  business  which  must  ensue  from  the  passage  of  this 
law,  and  on  the  other  the  appalling  statistics  of  intemperance, 
pauperism  and  crime,  and  then  determine  whether  the  public 
necessity  was  suiBciently  urgent  to  justify  the  individual  wrong. 
It  is  enough,  to  uphold  this  law,  that  its  aims  and  object  are 
proper  subjects  of  legislation,  and  that  its  apparent  tendency  is 
to  promote  these  objects.  The  legislature,  in  the  exercise  of  a 
legitimate  discretion,  have  decided  that  in  order  to  prevent  in- 
temperance, pauperism  and  crime,  it  was  necessary  to  prohibit 
the  sale  of  intoxicating  liquor  as  a  beverage.  "Whether  such 
necessity  in  fact  existed,  and  whether  prohibition  will  accom- 
plish the  object  which  the  legislature  had  in  view,  may  be  ques- 
tionable. But  these  are  questions  which  the  legislature  were 
obliged  to  determine,  and  even  if  they  have  decided  them  erro- 
neously no  appeal  lies  irora  their  decision  to  the  judicial  tribu- 
nals of  the  state.  Tne  errors,  if  any  exist,  must  be  corrected 
by  the  people  through  the  ballot  boxes.  If  it  was  clear  be- 
yond question  that  no  such  necessity  existed,  or  that  the  law 
could  not  accomplish  its  professed  object,  then  it  would  present 
a  case  of  unnecessary  and  Avanton  violation  of  private  rights  by 
the  legislature,  and  the  aid  of  the  judiciary  might  properly  be 
invoked  for  their  protection.  But  these  questions  have  been 
publicly  and  widely  discussed,  good  and  wise  men  have  differed 
in  opinion  with  regard  to  them,  and  the  legislature  have  delibe- 
rately passed  upon  them,  Their  decision,  I  think,  must  stand 
until  it  is  reversed  by  the  people  acting  through  the  agency  of 
a  subsequent  legislature. 

But  it  is  further  claimed  that  the  defendant  should  be  dis 
charged  from  custody, 

II.  Because  it  does  not  appear,  from  the  complaint  under 


DUTCHESS— JULY,  1855.  235 


The  People  tJ.  Berberrich. 


ffhich  he  was  arrested  and  convicted,  that  he  sold  liquor  which 
was  not  imported.  That,  by  the  true  construction  of  the  ex- 
ception at  the  close  of  the  first  section  of  the  act,  the  unrestrict- 
ed sale  of  all  imported  liquor  is  permitted.  The  language  of 
this  exception  is  as  follows.  "  This  section  shall  not  apply  to 
liquor,  the  right  to  sell  which  in  this  state  is  given  by  any  law 
or  treaty  of  the  United  States."  It  is  said,  that  as  this  clause 
occurs  in  a  penal  statute,  and  is  a  part  of  the  definition  of  the 
offense  which  it  is  the  intention  of  the  law  to  prohibit  and  punish, 
it  must  be  stricAly  construed.  This  may  be  so.  But  a  literal 
construction  of  the  clause  will  render  it  entirely  nugatory. 
The  rights  of  those  whose  interests  are  protected  by  the  excep- 
tion forbid  such  a  construction.  There  is  no  law  or  treaty  of 
the  United  States  by  which  the  right  to  sell  any  description  of 
liquor  is  given,  directly  or  indirectly.  The  right  to  sell  liquor 
or  other  property  is  not  given  by  any  law  of  the  United  States 
or  the  state  of  New  York.  It  exists  as  a  necessary  incident 
to  the  right  of  property,  independently  of  any  positive  law.  It 
has  been  held  by  the  courts  of  the  United  States,  that  the  right 
to  sell  liquor  of  a  certain  description,  and  in  a  certain  condition, 
is  secured  by  the  operation  of  certain  laws  of  the  United  States 
against  any  restraint  of  the  right  of  sale  by  state  legislation. 
That  is  to  say,  when  the  act  of  congress  authorizes  the  impor- 
tation of  liquor,  the  right  of  the  importer  to  sell  it,  results  as  a 
necessary  incident  to  the  right  to  import,  and  is  secured  to  him 
against  any  interference  on  the  part  of  the  state  legislature,  by 
the  paramount  authority  of  congress.  The  question  then  is, 
what  description  of  liquor  is  it,  the  right  to  sell  which,  notwith- 
standing any  prohibition  by  the  laws  of  this  state,  is  derived 
from  or  secured  by  the  act  of  congress  ?  It  is  imported  liquor 
in  the  casks  or  packages  in  which  it  was  imported.  The  excep- 
tion from  the  prohibition  is  exactly  coextensive  with  the  right 
to  sell  secured  by  the  act  of  congress ;  and  the  exception  was 
plainly  and  solely  intended  to  avoid  a  conflict  between  the  state 
and  federal  laws.  Any  other  construction  would  be  so  totally 
at  variance  with  the  whole  spirit,  scope  and  intention  of  the 
entire  law  as,  in  my  judgment,  to  be  utterly  inadmissible. 


236  CASES  IN  THE  SUPEEME  COURT. 

The  People  v.  Berberrich 

The  rules  by  which  the  sages  of  the  law  have  ever  been  guided; 
in  seeking  for  the  intention  of  the  legislature,  are  maxims 
of  sound  interpretation,  which  have  been  accumulated  by  the 
experience,  and  ratified  by  the  wisdom  of  ages.  {Plowden^s 
Rep.  205.)  The  resolutions  of  the  barons  of  the  exchequer 
in  Heydeiis  case,  Avere  the  following  :  "  For  the  sure  and  true 
interpretation  of  all  statutes  in  general,  be  they  penal  or  bene- 
ficial, restFictive  or  enlarging  of  the  common  law,  four  things 
are  to  be  discerned  and  considered.  1.  What  was  the  com- 
mon law  before  the  making  of  the  act?  2.  What  was  the 
mischief  and  defect  against  which  the  common  law  did  not  pro- 
vide? 3.  W^hat  remedy  the  parliament  hath  resolved  and  ap- 
pointed to  cure  the  disease  of  the  commonwealth  ?  4,  The 
true  reason  of  the  remedy.  And  it  was  held  to  be  the  duty  of 
the  judges  at  all  times  to  make  such  construction  as  should 
suppress  the  mischief  and  advance  the  remedy,,  putting  down 
all  subtle  inventions  and  evasions  for  continuance  of  the  mis- 
chief, et  pro  privato  commodo,  and  adding  force  and  life  to  the 
cure  and  remedy  according  to  the  true  intent  of  the  makers  of 
it,  pro  bono  publico."  (3  Reports,  7.)  Surely  we  are  not  called 
upon  to  reverse  these  admirable  rules  for  the  construction  and 
interpretation  of  statutes,  and  so  to  construe  this  act  as  will  cer 
tainly  and  clearly  advance  the  mischief  which  it  was  intended 
to  suppress,  and  suppress  the  remedy  which  it  was  intended  to 
advance. 

It  is  further  claimed  that  the  defendant  is  entitled  to  his  dis- 
charge, 

III.  Because  the  proceedings  against  him  Avere  in  violation  of 
law,  and  void.  I  can  perceive  no  substantial  error  in  these  pro- 
ceedings down  to  the  time  when  the  defendant  was  brought  be- 
fore  the  county  judge  upon  the  warrant  issued  by  that  magis- 
trate for  his  arrest.  He  then  demanded  that  his  examination 
should  be  taken,  and  offered  bail  for  his  apperance  at  the  next 
court  of  sessions  for  Dutchess  county.  This  was  refused,  and 
he  Avas  thereupon  tried  and  convicted  before  a  court  of  special 
sessions  held  by  said  county  judge.  In  refusing  an  examina- 
tion or  to  take  bail  for  the  appearance  of  the  defendant,  I  think 


DUTCHESS— JULY,  1855.  23' 


The  People  v.  Berbenich. 


the  county  judge  committed  an  error  which  was  fatal  to  the 
validity  of  all  the  subsequent  proceedings  against  the  defendant. 
The  examination  of  the  defendant  should  have  been  taken  by 
the  county  jiidge  ;  and  if  upon  the  examination  of  the  whole 
matter,  it  appeared  either  that  no  offense  had  been  committed, 
or  that  there  was  no  probable  cause  for  charging  the  defendant 
therewith,  he  should  have  been  discharged.  If  there  was  prob- 
able cause  to  believe  the  defendant  guilty,  bail  should  have  been 
taken,  if  offered  by  the  defendant,  for  his  appearance  at  the  next 
court  having  cognizance  of  the  offense.     (2  R.  S.  708,  709,  710.) 

A  court  of  special  sessions  is  one  of  limited  jurisdiction,  de- 
riving all  its  powers  from  the  statute.  The  modes  in  which  it 
can  acquire  jurisdiction  to  try  a  person  charged  with  an  offense 
triable  before  it,  are  pointed  out  by  the  statute. 

In  2  R.  S.  711,  §§  2  and  3.  it  is  provided  that  a  court  of  spe- 
cial sessions  shall  be  organized  to  try  such  persons,  1st.  When 
such  person  shall  request  to  be  so  tried  ;  2d.  When  he  shall 
not  make  such  request,  and  after  being  required  by  the  magis 
trate  before  whom  he  is  brought  shall  omit  for  twenty-foui 
hours  after  being  so  required,  to  give  bail  for  his  appearance  at 
the  next  criminal  court  having  jurisdiction. 

The  court  of  special  sessions  held  by  the  county  judge,  foi 
the  trial  of  the  defendant,  did  not  acquire  jurisdiction  over  his 
person  in  either  of  these  modes.  It  is  true  that  the  act  for  the 
prevention  of  intemperance,  pauperism  and  crime,  does  not  in 
terms  provide  that  jurisdiction  over  the  person  can  only  be  ac- 
quired by  such  courts  of  special  sessions  as  it  directs  to  be  held 
in  the  modes  pointed  out  by  the  revised  statutes  ;  but  the  act, 
in  section  5,  provides  that  the  several  magistrates  named  in  that 
section  shall  hold  courts  of  special  sessions,  and  shall  exercise 
the  same  authority  that  may  be  exercised  by  justices  of  the 
peace  in  criminal  cases,  and  by  courts  of  special  sessions  a^s 
the  same  are  now  constituted. 

\  conclude,  therefore,  that  the  legislature  did  not  intend  tc 
extend  the  jurisdiction  of  courts  of  special  sessions  so  i\r  as  tc 
compel  persons  accused  of  offenses  against  the  act  in  question 
to  submit  to  a  trial  before  such  tribunals,  in  cases  where  such 


238  CASES  IN  THE  SUPREME  COURT. 

McDonough  'v.  LougVilin. 

persons  should  offer  bail  for  their  appearance  at  the  next  court 
of  sessions  or  oyer  and  terminer,  at  all  events.  There  is  no 
express  provision  in  the  act  to  that  effect,  and  I  think  that  the 
right  of  a  person  thus  accused  to  put  in  bail,  involving  as  it 
does  the  right  to  have  the  accusation  against  him  submitted  to 
and  passed  upon  by  a  grand  jury,  and  the  right  to  have  any 
indictment  which  may  be  found  against  him  tried  by  a  jury  in 
the  ordinary  course  of  the  common  law,  cannot  be  taken  away 
by  uncertain  inference,  or  doubtful  implication. 

My  opinion  therefore  is,  that  the  court  of  special  sessions  had 
no  jurisdiction  of  the  person  of  the  defendant,  that  his  convic- 
tion was  void,  and  that  he  ought  to  be  discharged  from  custody. 

Brown,  J.,  and  S.  B.  Strong,  J.,  concurred  in  the  judg- 
ment of  reversal,  but  dissented  from  Judge  Rockwell's  con- 
clusion that  the  act  under  Avhich  the  proceedings  were  instituted 
was  constitutional. 

Judgment  reversed. 

[Dutchess  General  Term,  Jul}-  21,  1855.  Brown,  S  P.  Strong  and  Rock- 
well, Justices.] 


McDonough.  appellant,  vs.  Loughlin  ami  Cassidy, 
respondents. 

Where  an  objection  to  the  competency  of  a  witness  examined  before  a  surrogate 
is  not  raised  there,  it  will  be  deemed  to  have  been  waived,  and  will  be  of  no 
avail  on  appeal. 

Where  the  subscribing  witnesses  to  a  will  subscribe  their  names  at  the  end  of  a 
memorandum  of  erasures  and  interlineations  which  is  immediatelj'  below  the 
attestation  clause,  this  is  a  sufficient  signatiare  by  them. 

The  memorandum  is  merely  a  part  of  the  certificate,  which,  taken  togethei, 
states  that  the  paper  as  altered  was  executed  by  the  testator  and  attested  i>y 
the  witnesses. 

Where  a  testator  said  to  one  of  the  subscribing  witnesses,  "  Mr.  McC.  [the  scriv- 
ener) will  want  you  to  be  a  witness  to  the  will ;"  and  the  scrivener  read  the 
attestation  clause  to  the  testator,  and  asked  him  whether  he  wished  th^  parsons 


DUTCHESS— JULY,  1855.  239 


McDonough  v.  Louglilin. 


pi«sent  to  be  witnesses  to  tiie  will,  and  he  said  he  did:  Held,  tliat  this  was  a 
sufficient  te quest  of  the  witnesses  to  bcconit  such. 

h  is  not  necessary  that  a  testator  should  himself  formally'  repeat  the  words. 
It  is  enough  if  he  directly  and  audibly  adopts  the  language  of  another,  used 
in  his  presence  and  hearing. 

The  adnii-ssion  and  examination  of  an  executor  and  trustee  as  a  witness  to  prove 
the  execution  of  a  will,  does  not  annul  his  appointment  of  exectitor,  or  the 
legacies  to  him  as  a  trustee,  where  nothing  is  given  to  him,  nor  is  any  appoint- 
ment conferred  upon  him,  for  his  own  personal  use,  but  all  is  fiduciary  and 
for  the  benefit  of  others. 

The  fact  that  the  donee  of  a  mere  naked  power  may  be  entitled  to  a  compensa- 
tion for  his  services,  does  not  necessarily  render  him  beneficially  interested  in 
the  execution  of  the  power. 

Nor  will  the  circumstance  that  an  executor  is  entitled  to  commissions  for  his 
services,  render  him  an  incomptent  witness  to  establish  the  will. 

Those  commis-sions  are  allowed  by  statute,  by  way  of  compensation  for  the  exec- 
utors' services,  and  are  not  a  gift  under  the  will. 

THIS  was  an  appeal  from  a  decree  of  the  surrogate  of  the 
county  of  Kings,  admitting  the  will  of  James  McDonough, 
late  of  the  city  of  Brooklyn,  to  probate,  and  determining  that 
Eugene  Cassidy  was  not  disqualified  from  acting  and  talcing 
letters  testamentary  as  one  of  the  executors  of  the  said  will, 
and  that  John  Loughlin  and  Eugene  Cassidy  were  entitled  to 
receive  letters  testamentary  as  executors  of  the  said  James 
McDonough.  On  the  2d  day  of  Dec.  1853,  Eugene  Cassidy 
appeared  before  the  surrogate  and  presented  his  application  in 
wj-iting,  setting  forth  that  he  was  an  executor  named  in  the  last 
will  and  testament  of  the  said  James  McDonough  deceased ;  that 
the  deceased  was,  at  the  time  of  his  death,  an  inhal)itant  of  the 
county  of  Kings,  and  died  there  on  the  6th  day  of  Oct.  1853 ; 
that  the  said  last  will  and  testament  related  exclusively  to  per- 
sonal estate  ;  stating  also  the  names  and  places  of  residence  of 
the  next  of  kin  of  the  deceased,  and  asking  that  the  said  last  will 
and  testament  might  be  proved,  and  letters  testamentary  granted 
thereon.  A  citation  was  accordingly  issued,  returnable  on  the 
20th  day  of  January,  1854.  On  that  day  Eugene  Cassidy,  the 
executor,  appeared  in  person  and  by  A.  McCue,  Esq.  his  coun- 
.«el.  James  McDonough,  a  nephew  of  the  deceased,  also  ap- 
peared in  person  and  by  counsel.     The  said  Eugene  Cassidy, 


240  CASES  IN  THE  SUPREME  COURT. 

McDonough  v.  Loughlin. 

who  was  one  of  the  subscribing  witnesses  to  the  will,  was  exam 
ined  as  a  witness,  and  testified  to  the  due  execution  of  the  will_ 
by  the  testator,  in  his  presence.  On  his  cross-examination  he 
testified  that  the  Avill  was  drawn  by  Mr.  McCue,  who  read  the 
will  to  the  testator  and  asked  him  if  there  was  any  thing  else 
he  wished  to  insert.  The  testator  said  no;  that  Mr.  McCue 
then  said  "you  sign  this  as  your  last  will  and  testament?"'  and 
the  testator  said  "  I  do,"  and  signed  it,  on  the  table,  by  the 
bed  ;  that  the  witnesses  signed  immediately  after  he  did  ;  McCue 
telling  the  deponent,  at  the  time,  he  was  to  sign  the  will  as  a 
witness  ;  that  previous  to  the  signature  by  the  witness,  the 
testator  said  to  him  "Mr.  McCue  will  want  you  to  be  a  witness 
to  the  will ;  he  will  want  three  witnesses  to  it."  A.  McCue, 
the  other  subscribing  witness,  testified  that  some  additions  and 
alterations  were  made  in  the  will,  after  he  arrived  ;  that  he 
re.id  the  Avill  to  the  testator,  who  then  signed  it ;  that  the  tes- 
tator spoke  of  its  requiring  three  witnesses ;  the  witness  told 
him  that  two  witnesses  were  all  that  were  required ;  and  Mr. 
Cassidy  and  himself  would  be  sufficient ;  that  the  witness  read 
the  attestation  clause  to  the  testator,  and  asked  him  whether 
he  wished  him  [McCue')  and  Cassidy  to  he  loitnesses  to  the 
will,  and,  he  said  he  did.  The  testator,  by  the  second  clause  of 
the  will,  gave  to  Eugene  Cassidy  $1000,  "to  be  applied  by  him 
to  certain  uses  and  purposes  heretofore  made  known  to  him,  and 
the  carrying  out  of  which  I  intrust  to  him.'  He  then  directed 
his  executors  to  invest  various  sums,  and  pay  the  interest  thereof 
to  individuals  named,  and  for  charitable  objects  particularly  spe- 
cified. By  the  5th  clause  he  gave  to  Cassidy  the  right  of  pre- 
senting three  young  men  to  an  ecclesiastical  education  provided 
for  in  the  will :  with  power  to  nominate  and  appoint,  by  will,  a 
successor  to  said  power  of  presentation.  And  lastly  he  gave, 
bequeathed  and  devised  to  John  Loughlin,  Roman  Catholic 
bishop  elect  of  the  diocese  of  Brooklyn,  and  to  the  Rev. 
Eugene  Cassidy,  all  of  his  estate,  wheresoever  situate  and  not 
particularly  devised  and  bequeathed  by  said  will,  for  the  uses 
and  purposes  previously  set  forth.  And  he  appointed  them  and 
the  successor  of  them,  executors  and  trustees  of  his  will ;  there- 


1 


DUTCHESS— JULY,  1855.  241 


McDonough  v.  Louglilin. 


by  giving  unto  theni,  and  the  successors  of  them,  such  powers 
as  might  be  necessary  to  carry  into  effect  the  provisions  of  said 
will.  At  the  foot  of  the  Avill  was  the  attestation  clause,  on  the 
left  of  the  testator's  signature ;  below  which  was  a  memoran- 
dum of  the  erasures  and  interlineations  in  the  will.  And  the 
names  of  the  attesting  witnesses  were  subscribed  at  the  end  of 
this  memorandum. 

The  surrogate  decreed  that  the  will  was  duly  executed  by  the 
testator,  who  was  competent  to  bequeath  personal  estate ;  that 
the  will  Avas  a  valid  will  of  personal  estate,  and  that  the  proofs 
thereof  Avere  sufficient.  And  he  ordered  that  the  will,  with  tlie 
proofs  and  examinations,  be  recorded  ;  and  that  letters  testa, 
mentary  should  issue  to  the  executors  named  therein.  From 
this  decree  James  McDonough,  one  of  the  heirs  and  next  of 
kin  of  the  decedent,  appealed. 

S.  B.  Ri'ophy,  for  the  appellant.  I.  The  Avill  was  not  exe- 
cuted, or  attested,  according  to  the  requirements  of  the  revised 
statutes.  (1.)  There  is  no  signature  of  any  witness,  at  the 
end  of  the  Avill.  The  statute  requires  that  there  shall  be  at 
least  two  attesting  witnesses,  each  of  Avhom  shall  sign  his  name 
at  the  end  of  the  will,  at  the  request  of  the  testator.     (2  R.  iS. 

124,  §  32 ;  2  Curteis,  342,  343 ;  8  Paige,  488.)  (2.)  Signing 
"the  memorandum  of  alterations,  is  not  signing  at  the  end  of  tlie 
will,  within  the  meaning  of  the  statute.  (Maguire  v.  Kerr, 
2  Bradf.  254,  and  cases  there  cited.)  (3.)  There  is  no  evidence 
to  shoAv  that  the  decedent  requested  Eugene  Cassidy  or  A.  Mc- 
Cue  to  witness  the  Avilh 

II.  Assuming  that  the  will  Avas  duly  executed,  the  surrogate 
erred  in  granting  letters  to  Eugene  Cassidy,  on  the  ground  that 
he  AA^is  a  necessary  subscribing  witness  to  the   will.     (2  R.  iS. 

125,  §  42,  Sd  cd.)  (1.)  The  Avhole  interest  vests  in  the  execu- 
tor, on  the  death  of  the  testator.  (9  Wend.  302  ;  2  Hill,  181.) 
An  executor  has  an  interest  in  the  estate  to  the  extent  of  his 
commissions.  (2  R.  iS.  137,  §  62.  Burritt  v.  Silliman,  16  Barb.. 
198.  Taylor  v.  Taylor,  1  Rich.  531.  Tucker  v.  Tucker, 
5  Iredell,  161.    4  Hawks,  N.  C.   141.    Dominick  v.  Michael. 

Vol.  XX.  31 


242 


CASES  IN  THE  SUPREME  COURT. 


JMcDonou-ih  v.  Loujihlin. 


4  Scwdf.  S.  C.  R.  401.  Judson  v.  Gibbons,  5  Wend.  224.) 
(2.)  The  fifth  clause  of  the  will  gives  to  Eugene  Cassidy  the 
right  of  presenting  three  young  men  to  an  ecclesiastical  educa- 
tion, with  power  to  appoint  his  successor  to  this  right.  This  is 
a  beneficial  appointment.  (2  Black.  Corn.  22,  A'".  Y.  ed.  1849.) 
(3.)  The  statute  provides,  that  a  subscribing  witness  to  a  will 
cannot  take  any  interest,  because  the  effect  of  his  testimony 
would  be  to  secure  for  himself  all  the  benefits  conferred  on  him 
by  the  will.  (7  Barb.  554.  8  Adolph.  ^  Ellis,  215.  16  id. 
747,  745.) 

III.  The  will  Avas  materially  altered  in  several  parts,  Avithout 
the  knowledge  or  consent  of  the  decedent ;  such  alterations 
are  presumptively  fraudulent.  (1.)  There  is  no  evidence  to 
shoAV  Avhen,  where,  or  at  whose  instance  the  alterations  Avere 
made  in  the  Avill.  Alterations  apparent  on  the  face  of  a 
Avill,  are  presumed  to  have  been  made  after  the  Avill  Avas 
executed,  unless  evidence  to  the  contrary  is  adduced.  {Shali- 
cross  V.  Palmer,  16  Adol.  ^  Ellis,  N.  iS.  747.)  Where  fraud, 
is  apparent  the  onus  probandi  is  throAvn  with  great  strict- 
ness on  those  Avho  seek  to  establish  the  Avill.  {Park  v.  Olloff, 
2  Phillim.  Eccl  Rep.  323.  1  id.  187,  493.)  (2.)  Omitting 
to  produce  evidence  in  elucidation,  Avhich  is  in  the  poAver  of 
the  party,  or  Avithin  his  knoAvledge,  shall  be  holden  to  turn 
every  doubt  against  him.     (1  Stark.  Ev.  34.     3  id.  487,  8.) 

IV.  The  cross-examination  shows  that  the  attesting  Avitnesses 
contradict  themselves,  and  each  other  ;  their  testimony  is  there- 
fore shaken,  and  they  alone  proved  the  Avill.  In  a  case  preg- 
nant Avith  the  appearance  of  fraud,  and  resting  on  the  attesting 
Avitnesses  alone,  these  witnesses  must  be  beyond  suspicion,  and 
if  at  all  shaken  in  credit,  no  part  of  their  evidence  can  be 
relied  on.  (1  Hagg.  Eccl.  Rep.  288.)  Eugene  Cassidy,  in 
Avhose  favor  the  alterations  are,  is  a  legatee,  a  patron  to  an 
ecclesiastical  appointment,  and  executor  and  a  Avitness  to  the 
will.     He  was  the  conduit  of  the  decedent's   directions  to  tho 

•other  Avitness  Avho  Avrote  the  Avill,  and  in  Avhose  handwritirg  the 
alterations  Avere  made.  KnoAvledge  of. these  erasures  and  alter- 
ations, is  therefore  conclusive  against  both  of  the  attesting  wit- 


DUTCHESS— JULY,  1855.  243 


McDonough  v.  Loughlin. 


nesses  ;  3'^et  they  oifer  no  explanation.  If  narratives  like  the 
present  may  be  written  at  the  end  of  a  will,  and  signed  as  an 
attestation  clause,  a  wide  door  is  thrown  open  to  the  most  enor- 
mous frauds,  upon  testators  and  heirs  at  law.  The  court  should 
assert  a  safe  general  principle,  irrespective  of  any  opinion  it 
may  form  as  to  the  good  or  bad  faith  of  the  witnesses  in  the 
particular  instance,  and  so  give  eflffect  to  the  spirit  of  thp 
statute. 

A.  McCue  and  H.  B.  Daryea,  for  the  respondent.  I.  The 
will  of  the  testator  is  executed  in  the  manner  prescribed  by  the 
revised  statutes.  (2  R,  aS".  3o?  ed.  p.  124,  §  32.  Remsen  v. 
Brinclcerhoff,  26  Wend.  325.     See  1  Denio,  33.) 

II.  The  respondent,  Cassidy,  Avas  a  competent  witness  to 
prove  the  execution  of  the  will.     (2  R.  S.  Sd  ed.  125,  §  42.) 

III.  If  the  legacy  and  devise,  to  the  respondent  Cassidy,  be 
void,  then  he  takes  no  beneficial  interest  or  appointment  under 
the  will.  The  office  of  executor  is  not  such  a  beneficial  interest 
or  appointment  as  is  contemplated  by  sec.  42,  page  125,  vol.  2, 
R.  S.  3d  ed.  The  law  vests  the  whole  personal  estate  in  the  ex- 
ecutor. And  an  executor  and  trustee  may  be  a  witness  to  the  will 
under  which  he  takes  his  appointment.  {Jai'tnin  on  Wills,  2d 
Am.  ed.  vol.  1.  p.  106,  and  cases  therein  cited.  Phipps  v. 
Pitcher,  6  Taxmt.  220.  Tucker  v.  Tucker,  5  Iredell,  161. 
Valentine  v.  Jackson,  9  Wend.  302.  Babcock  v.  Booth,  2  Hill, 
181.     1  W.   Black.  325.     1  Douglass,  139.     12  East,  250.) 

The  decree  of  the  surrogate  should  be  affirmed. 

By  the  Court,  S.  B.  Strong,  J.  The  statute  would  have 
made  the  respondent  Cassidy  a  competent  witness  to  prove  the 
execution  of  the  will,  even  if  he  would  have  otherwise  l)een  ex- 
cluded by  the  rules  of  the  common  law.  (2  R.  S.  65,  §  50.) 
The  only  objection,  of  any  weight,  to  his  admissibility  Avas  that 
he  was  the  applicant  to  establish  the  Avill,  and  therefore  respon- 
sible for  the  costs,  in  the  event  of  a  failure.  That  objection 
not  having  been  raised  before  the  surrogate,  it  must  be 
deemed  to  have  been    waived,   and  can  be  of  no  avail  on  an 


244         CASES  IN  THE  SUPREME  COUET. 


McDonough  r.  Loughlin. 


appeal,  {Leach  v.  Kelsey^  7  Bm^h.  466.  1  Cowen  tj'  Hiir* 
Notes,  256,  266.) 

I  can  see  no  valid  objection  to  the  manner  in  which  the  wit- 
nesses to  the  execution  of  the  will  subscribed  their  names. 
The  legislature  undoubtedly  intended  that  the  certificate  of 
attestation  should  intervene  between  the  body  of  the  will  and 
the  names  signed  by  the  witnesses.  The  memorandum  of  the 
erasures  and  interlineations  is  merely  a  part  of  the  certificate. 
Taken  together,  it  states  that  the  paper  as  altered,  was  exe- 
cuted by  the  testator  and  attested  by  the  witnesses.  That,  so 
far  as  I  know,  is,  and  was  before  the  adoption  of  the  revised 
statutes,  the  usual  practice  where  there  are  alterations  to  the 
will  as  at  first  drawn,  and  it  seems  to  me  is  free  from  objec- 
tion, and  very  proper.  The  alterations  in  the  Avill  in  question 
are  quite  numerous,  and  the  memorandum  is  consequently  a 
long  one,  but  that,  in  the  absence  of  any  charge  of  fraud,  can 
make  no  difference. 

The  appellant  is  mistaken  in  point  of  fact  in  his  allegation 
that  there  is  no  evidence  to  show  that  the  decedent  requested 
Cassidy  and  McCue  to  witness  the  will.  Cassidy  testified  that 
the  testator  said  to  him,  "  Mr.  McCue  will  want  you  to  be  a 
witness  to  the  will."  And  McCue  swore  that  '•  he  read  the 
attestation  clause  to  the  testator,  and  asked  him  whether  he 
wished  us  (Cassidy  and  McCue  being  the  only  persons  then  in 
attendance)  to  be  witnesses  to  the  will,  and  he  said  that  he 
did."  It  surely  is  not  necessary  that  a  testator  should  himself 
formally  repeat  the  words.  It  is  enough  if  he  directly  and  au- 
dibly adopts  the  language  of  another,  used  in  his  presence  and 
hearing.  To  hold  otherwise  would  be  to  sacrifice  substance  to 
mere  unmeaning  formality. 

I  am  strongly  inclined  to  think  that  the  admission  and  ex- 
amination of  Cassidy,  as  a  witness  to  prove  the  will,  did  not  an- 
nul his  appointment  of  executor,  or  the  legacies  to  him  as  a 
trustee.  The  statute  avoids  any  beneficial  devise,  legacy,  inter- 
est or  appointment,  to  witnesses,  (2  R.  S.  65,  §  50,)  but  the  use 
of  the  word  "  beneficial,"  if  it  has  any  signification,  indicates 
that  there  may  be  devises,  legacies,  interests  and  appointments 


DUTCHESS- JULY,  1855.  245 


McDonough  v.  Loue-hlin. 


to  an  executor  or  trustee,  which  may  be  sustained,  notwithstand- 
ing his  examination  in  support  of  the  will.  The  only  question 
in  this  case  is  whether  the  legacies  or  appointment  are  bene- 
ficial to  Cassidy.  Clearly  nothing  is  given  to  him,  nor  is  any 
appointment  conferred  upon  him,  for  his  own  personal  use.  All 
is  fiduciary,  and  for  the  benefit  of  others.  He  Avill  be,  it  is 
true,  entitled  to  the  commissions  allowed  by  the  statute.  But 
that  is  by  way  of  compensation  for  his  services,  and  is  not  a 
gift  under  the  will.  Payment  for  services  (and  in  most  cases 
of  this  kind  the  compensation)  is  never  considered  as  a  gratuity. 
It  is  undoubtedly  beneficial  to  have  an  employment,  for  a  rea- 
sonable compensation,  but  the  benefit  is  not  of  a  character  to 
disqualify  a  witness,  and  it  is  to  such  only  that  the  statute  re- 
fers. The  revised  statutes  declare  that  devises  in  trust  are 
not  necessarily  beneficial.  They  provide  (1  R.  S.  7^2,  §  76) 
that  pomers  are  beneficial  or  in  trust,  and  (in  §  79)  that  a  gen- 
eral or  special  power  is  beneficial  when  no  person  other  than 
the  grantee'  has,  by  the  terms  of  its  creation,  any  interest  in 
its  execution.  These  provisions  are  certainly  antagonistical  to 
the  idea  that  because  the  donee  of  a  mere  naked  power  may  be 
entitled  to  a  compensation  for  his  services  he  is  therefore  bene- 
ficially interested. 

It  has  been  held  in  South  Carolina,  [Taylor  v.  Taylor, 
1  Richardson,  531,  and  Tucker  v.  Tucker,  5  IredelVs  Law 
Rep.  161.)  that  the  office  of  executor  is  an  appointment  yield- 
ing emolument,  and  that  therefore  one  named  as  an  executor  in 
a  will  is  an  incompetent  witness  to  establish  it.  And  the  same 
principle  was  adopted  in  the  case  of  a  trustee  entitled  to  com- 
pensation, in  North  Carolina.  ( Allison's  Ex'rs  v.  Allison,  4 
HaiDks^  Rep.  141.)  The  same  rule  has  been  adopted  by  this 
court  at  a  general  term*  in  the  third  district,  {Burritt  v.  Silli- 
man,  16  Barb.  198,)  although,  as  stated  by  Judge  Harris, 
^*  with  hesitation."  But  the  decisions  in  the  Enfrlish  courts  are 
the  other  Avay.  (1  Modern  Rep.  107,  before  Lord  Hale. 
Lowe  V.  Jolliffe,  1  W.  Black.  365.  Holt  v.  TijrrelL  1  Bar- 
nard. Rep.  K.  B.  12.  Bettison  v.  Bromley,  12  East,  250.) 
In  the  case  last  cited,  Lord  Ellenborough  said  that  the  point 


246        CASES  IN  TEE  SUPREME  COURT. 

The  People  v.  Crilley. 

had  been  decided,  so  long  ago  as  Lord  Hale's  time,  that  an  ex- 
ecutor having  no  interest  in  the  surplus  was  a  good  witness  to 
prove  the  will,  in  a  cause  concerning  the  estate  ;  and  this  had 
been  followed  by  other  decisions  to  the  same  effect.  I  am  in- 
clined to  follow  the  English  decisions,  as  it  seems  to  me  they 
are  supported  by  the  better  reason.  It  is  true  that  in  England 
the  executor  has  not,  generally,  any  compensation  for  his  ser- 
vices ;  but  it  is  taking  a  very  narrow  view  of  the  subject  to 
suppose  that  the  statute  allowing  a  meager  compensation  for 
what  are  too  often  unthankful  services,  can  confer  such  a  benefit 
as  to  disqualify  an  otherwise  competent  witness.  The  tendency 
of  modern  legislation  is  to  relax  the  rules  of  exclusion,  and  I 
yield  to  the  spirit  of  the  age  where  those  rules  were  merely 
technical,  or  had  no  substantial  foundation. 
The  surrogate's  decree  must  be  affirmed. 

[Dutchess  General  Term,  July  2,  1855.     Brown,  S.  B.  Strong  and  Rock- 
wdl,  Justices.] 


The  People  vs.  Orilley. 

The  sale  of  ale  in  less  quantities  than  five  gallons,  without  having  a  license 
therefor,  granted  according  to  the  provisions  of  title  9,  chapter  20,  of  the  first 
part  of  the  revised  statutes,  is  not  prohibited  by  the  15th  section  of  that  title, 
nor  declared  a  misdemeanor  by  the  25th  section. 

CERTIORARI  to   the  oyer  and   terminer  of  the  county  of 
Dutcliess,  to  remove  a  conviction  of  the  defendant  upon  an 
indictment  for  a  violation  of  the  excise  Jaw. 

T.  C.  Camjjbellj  district  attorney,  for  the  people. 

II.  A.  Nelson,  for  the  defendant. 

By  the  Court,  S.  B.  Strong,  J.     The  defendant  was  tried 
on  an  indictment  for  a  violation  of  the  15th  section  of  the  title 


DUTCnESS— JtLY,  1855.  247 


The  People  v.  Crilley. 


of  the  revised  statutes,  relative  to  excise  and  the  regulation  of 
taverns  and  groceries.  (1  R.  S.  680.)  That  section  is  in  the 
following  words  :  "  Whoever  shall  sell  any  strong  or  spirituous 
li'|uors,  or  any  wines,  in  any  quantity  less  than  five  gallons  at  a 
time,  without  having  a  license  therefor,  granted  as  herein  direct- 
ed, shall  forfeit  twenty-five  dollars."  The  25th  section  declares 
that  all  offenses  against  the  provisions  of  that  title  shall  be 
deemed  misdemeanors.  The  only  proof  to  sustain  the  charge 
was  that  the  defendant  had  sold  one  gill  of  ale,  to  be  drank  in 
his  store.  The  court  below  charged  the  jury  that  "  the  sale  of 
ale  in  less  quantities  than  five  gallons,  without  having  a  license 
therefor,  granted  according  to  the  provisions  of  title  9,  part  1, 
chapter  20  of  the  revised  statutes,  is  a  misdemeanor."  To  that 
the  defendant's  counsel  excepted  ;  and  whether  the  court  was 
right  or  erred  in  thus  instructing  the  jury,  is  the  only  question 
presented  for  our  determination. 

It  was  decided  by  this  court,  in  Nevin  v.  Ladue,  (3  Denio, 
43,)  that  ale  was  included  in  the  terms  strong  or  spirituous 
liquors  as  used  in  the  statute,  and  a  conviction  founded  simply 
on  the  defendant's  confession  that  he  had  sold  ale,  strong  beer  or 
fermented  beer,  without  a  license  therefor,  was  affirmed.  That 
case  was  subsequently  taken  to  the  court  for  the  correction  of 
errors.  (3  Denio,  437,)  where  the  judgment  of  this  court  was 
reversed,  on  the  ground  that  the  defendant's  confession  was  in  the 
alternative,  and  did  not  prove  that  he  had  sold  any  thing 
stronger  than  common  table  beer.  For  that  reason  the  major- 
ity of  the  members  of  the  court  of  dernier  resort  who  delivered 
written  opinions,  declared  that  the  question  whether  ale  or 
strong  beer  was  within  the  prohibition  of  the  excise  law,  did 
not  arise  in  the  case.  Although,  therefore,  the  opinions  of  the 
i.ate  judges  of  this  court,  and  of  Chancellor  Walworth,  who 
concurred  with  them,  are  entitled  to  great  respect,  yet  as  they 
were  expressed  upon  a  question  not  necessarily  involved  in  the 
case  before  the  court,  they  have  not  the  force  of  authority, 
and  we  are  at  liberty  to  adopt  and  follow  our  own  conclusions. 

Clearly,  ale  is  not  comprehended  within  the  term  Avines,  as 
it  is  generally  understood  and  applied.     That  term  includes 


248  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Crilley. 

the  fermented  juice  of  the  grape,  and  possibly  of  other  fruit 
Neither  is  it  a  spirituous  liquor,  as  spirits  are  manufactured  by 
distillation  ;  whereas,  ale  is  produced  by  fermentation.  If  it  is 
included  at  all  in  the  statutory  prohibition,  it  must  be  under 
the  denomination  of  "  strong  liquors."  There  is  no  statutory 
definition  of  the  word  "  strong,"  as  applied  to  liquors.  Its 
meaning  is  a  mere  matter  of  inference.  I  do  not  agree  with 
the  chancellor  that  our  legislature  in  passing  the  act  were 
influenced  by  the  phraseology  of  King  James'  version  of  the 
scriptures,  or  the  language  of  the  Egyptians,  the  Grreeks  or 
the  Romans.  I  doubt  much  whether  the  framers  of  our  stat- 
utes consult  the  bible,  or  the  works  of  any  ancient  authors, 
for  the  meaning  of  terms,  but  they  are  governed  in  that  re- 
spect, as  I  think  they  should  be,  by  the  authority  which  con- 
trols our  language,  the  present  usage  by  well  informed  people. 
The  words  "strong"  and  "weak"  are  relative  terms,  both  hav- 
ing reference  to  the  medium  of  the  class  to  which  they  are  ap- 
plied— one  being  above  and  the  other  below  it.  The  word 
liquors,  as  commonly  used,  includes  all  that  are  spirituous, 
vinoujj  or  inferior  fermented,  including  malt.  The  meaning 
should  not,  I.  think,  be  extended  any  further  for  the  purpose  of 
applying  relative  terms  designating  the  qualities  of  either  class. 
The  strength  of  liquors  and  their  intoxicating  powers  depend 
upon  the  quantity  of  alcohol  which  they  contain.  Spirituous 
liquors  contain  from  53  to  56  per  cent,  wines  from  18  (cham- 
pagne) to  26  (port)  per  cent ;  currant  wine  and  cherry^  wine 
over  10  per  cent,  metheglen  about  Ti  per  cent,  cider  (the  aver- 
age) about  7^  per  cent,  and  ale  (the  average)  about  6i  per  cent. 
{Brande^s  Manual  of  Chemistry,  1645,  1646.)  If  the  rule  of 
interpretation  which  I  have  mentioned  should  Ije  applied  to 
these  liquors,  ale  being  so  far  below  the  medium,  could  not  be 
appropriately  denominated  strong.  I  am  inclined  to  think  that 
it  is  not  originally  so  classed. 

After  all,  perhaps  the  statute  is  its  own  best  expositor.  The 
words  "  strong"  and  "spirituous"  are  connected  sometimes  by 
the  disjunctive,  and  at  others  ])y  the  copulative  conjunction, 
but  both  are  uniformly  prefixed  to  the  term  liquors,  without  any 


DTTTCnESS— JULY,  18o5.  ,  249 


The  People  v.  Crilley. 


thing  to  denote  separate  or  distinct  individuality.  There  is 
some  reason  for  inferring  that  both  qualifications  were  designed 
to  characterize  the  same  identical  subject  matter.  The  prin- 
cipal objection  to  this  interpretation  is  that  it  makes  the  expres- 
sions tautological,  but  instances  of  that  kind  are  frequent  in  our 
statutes.  It  would  seem  too  that  the  term  strong  was  designed 
to  apply  exclusively  to  spirituous  liquors,  from  the  subsequent 
specification  of  crimes.  That  would  have  been  superfluous  and 
indeed  improper  if  wines  had  been  previously  included  as  strong 
liquors.  The  statute  would  then  have  prohibited  the  unlicensed 
sale,  first  of  a  class,  and  then  of  a  part  of  it.  Then  too  in  a  sec- 
tion of  the  article  of  the  revised  statutes  relative  to  the  observance 
of  Sunday,  passed  at  the  same  time,  (1  R.  S.  676,)  there  is  a 
prohibition  against  selling  on  that  day  any  ale,  porter,  strong 
or  spirituous  liquors.  Here,  again,  if  ale  had  been  included  in 
the  general  expression  of  strong  liquors,  its  specification  would 
have  been  unnecessary  and  improper.  The  laAv  of  Massachu- 
setts Bay,  ch.  105,  §.2,  quoted  by  the  defendant's  counsel,  makes 
the  same  distinction  between  ale  and  strong  drink  or  spirits,  and 
it  also  prevails  in  the  English  statute,  26  Geo.  2,  ch.  31,  §  7, 11. 

Tt  was  contended  by  the  counsel  for  the  people,  hoT?  ever,  that 
the  provision  in  the  29th  section  of  the  statute  relative  to  excise, 
that  no  person  shall  be  subject  to  be  prosecuted  undei  that  act 
for  selling  metheglin,  currant  wine,  cherry  wine  or  cidei  proved 
that  the  legislature  intended  to  include  other  than  spi'^ituous 
liquors  and  wines  in  the  regulations  prescribed  by  the  statute. 
Currant  wine  and  cherry  wine  were  undoubtedly  included  in  the 
general  term  wines,  and  there  was  of  course  a  sufficient  reason 
for  specially  exempting  them,  if  they  were  to  be  exempted  at  all. 
But  the  reason  is  certainly  not  so  clear  for  excepting  metheg- 
lin and  cider,  unless  they  had  been  previously  included.  The 
counsel  for  the  defendant  supposes  that  they  were  particularly 
excepted  because  spirituous  liquors  are  applied  to  a  considerable 
extent  for  their  preservation.  Possibly  that  may  have  been  the 
reason,  but  provisos  and  exceptions  are  frequently  inserted  in 
our  statutes  to  prevent  the  extension  of  some  general  term  be- 
yond the  intent  of  the  legislatm'e,  2)ro  7najori  cantela  ;  and  it  is 

Vol.  XX.  32 


250  OASES  IX  THE  SUPREME  COURT. 


The  People  v.  Crilley. 


vtry  unsafe  to  apply  them  in  such  a  manner  as  to  enlarge  the 
meaning  of  the  general  provision  :  and  that  should  never  be  done 
when  such  provision  creates  a  penalty  or  a  crime. 

The  desiorn  of  a  statute  is  often  illustrative  of  the  meuninff  of 
its  phraseology.  Clearly,  in  the  instance  under  consideration  it 
was  to  promote  the  cause  of  temperance,  by  regulating  the 
sale  of  a  portion  of  the  intoxicating  liquors  in  general  use.  The 
particular  aim  would  naturally  be  to  prevent  the  indiscriminate 
sale  of  those  which  were  supposed  to  be  the  most  detrimental. 
Spiri  uous  liquors  were  the  most  dangerous,  then  wines,  and 
lastly  inferior  fermented,  including  malt,  liquors.  The  statu- 
i ary  regulation  included  all  spirituous  liquors,  and  all  wines  ex- 
cept currant  wine  and  cherry  wine,  which  were  deemed  to  be 
the  weakest  and  the  least  prejudicial.  The  act  allowed  the 
unrestricted  sale  of  those  two  liquors,  and  also  of  cider  and  me- 
theglin.  x\ll  of  those,  as  we  have  seen,  are  stronger  than  ale, 
and  it  seems  to  me  that  our  legislature  could  never-i^ave  designed 
to  sanction  the  unrestricted  sale  of  those  different  kinds  of 
liquor,  and  at  the  same  time  to  prohibit  the  free  sale  of  that 
which  was  weaker  and  less  prejudicial.  That  would  have  been 
absurd ;  and  although  our  legislative  bodies  have  sometimes 
made  strange  enactments,  yet  in  matters  of  implication  it  is 
better  to  infer  that  they  intended  to  act  consistently. 

In  my  opinion  the  conviction  in  the  court  below  was  Avrong. 
and  it  must  be  quashed. 

Conviction  quashed. 

[Dutchess  General  Term,  July  2,  1855.  Brown,  S.  B.  Strong  and 
Rockwell,  JuKtices.] 


.  CAYUGA— JUNE,  1855.  251 


BOGERT  VS.  HaIGHT. 

A^  wharfinger  and  warehouseman,  by  holding  himself  out  to  the  public  ao  such, 
cxt^ds  a  license  to  enter  upon  his  premises,  to  all  persons  having  occasion  to 
do  so,  in  connection  with  that  business. 

His  employment,  however,  is  a  merely  private  one.  He  is  under  no  legal  obliga- 
tion to  allow  the  use  of  his  wharf  or  warehouse  to  every  person  applying,  even 
if  he  has  suitable  accommodations,  and  a  reasonable  reward  is  offered  him  ; 
but  he  may  limit  the  general  license,  or  terminate  it,  in  the  case  of  any  yxirtic- 
ular  persons,  by  giving  them  notice  not  to  come  upon  the  premises. 

And  after  he  has  given  such  a  notice  to  an  individual,  and  thereby  revoked  tho 
license  as  to  him,  an  entry  of  the  latter  upon  the  wharf  is  a  trespass,  for  which 
an  action  will  lie. 

The  possession  of  the  premises,  by  the  plaintiff,  in  such  a  case,  is  sufficient  evi- 
dence of  his  right  to  bring  the  action. 

A  PPEAL  by  the  defendant  from  a  judgment  of  the  Yates 
i.jL  county  court.  The  action  was  commenced  before  a  justice 
of  the  peace  for  a  trespass,  in  entering  upon  the  plaintiff's  dock 
or  wharf.  The  plaintiff  was  the  owner  of  a  dock  and  storehouse 
at  Dresden,  on  the  Seneca  lake,  used  for  a  steamboat  landing, 
and  other  purposes.  The  defendant  was  the  driver  of  a  stage, 
employed  in  carrying  passengers  and  freight  to  and  from  the 
landing.  About  the  1st  of  November,  1853,  the  plaintiff  for- 
bade the  defendant  coming  upon  the  dock.  Afterwards,  and  on 
the  6th  or  7th  of  December,  the  defendant  came  on  again  and 
refused  to  leave.  For  this  entry  the  action  was  brought.  The 
plaintiff  recovered  a  judgment  for  six  cents  damages,  and  the 
county  court  aflBrmed  the  judgment. 

Jas.  Taylor,  for  the  appellant. 

E.  Van  Buren,  for  the  respondent. 

By  the  Court,  T.  R.  Strong,  J.  The  plaintiff  was  a  wharf- 
inger and  warehouseman,  and  by  holding  himself  out  to  the 
public  as  such,  extended  a  license  to  enter  upon  his  premises,  to 
all  persons  having  occasion  to  do  so  in  connection  with  that  bu- 
siness.     [Heaney  v.  Heaney,  2  Denio,   625.      Bearddey    v 


252  CASES  IN  THE  SUPREME  COURT. 

Bogert  V.  Haiglit. 

Frinch,  7  Conn.  R.  125.)  His  employment,  however,  Avas  a 
merely  private  one ;  he  was  under  no  legal  obligation  to  allow 
the  use  of  his  wharf  or  warehouse  to  every  person  applying, 
even  if  he  had  suitable  accommodations,  and  a  reasonable  re- 
ward was  offered  him  ;  but  he  might  limit  the  general  license, 
or  terminate  it,  in  the  case  of  any  particular  persons,  by  giving 
them  notice  not  to  come  upon  the  premises.  An  innkeeper  is 
bound  to  admit  all  persons  who  apply  peaceably  to  be  admitted 
as  guests,  when  he  has  accommodations  ;  and  a  common  carrier 
is  bound  to  receive  and  carry  all  goods  offered  for  transportation, 
or  all  passengers,  which  he  can  conveniently  carry,  upon  the 
usual  price  being  paid  or  tendered :  but  this  obligation  rests 
upon  considerations  of  public  policy  applicable  to  those  cases. 
Upon  the  same  grounds  of  public  policy  innkeepers  and  common 
carriers  are  subject  to  extraordinary  responsibility  for  the  safety 
of  property  placed  in  their  care.  The  cases  of  innkeepers  and 
common  carriers,  are  exceptions  to  the  general  rule  of  law,  as 
to  the  duties  and  responsibilities  of  bailees  and  persons  engaged 
m  business  for  hire,  which  allows  persons  to  decide  for  them 
selves  with  whom  they  will  do  business,  and  requires  of  them 
only  ordinary  care  and  diligence.  This  general  rule  applies  to 
Avharfingers  and  warehousemen.  The  cases  are  numerous,  that 
the  principles  of  public  policy  referred  to  do  not  embrace  them, 
and  that  they  are  bound  to  exercise  only  ordinary  care  in  regard 
^0  the  safety  of  goods  intrusted  to  them.  {Story  on  Bailments, 
§  444  to  §  453,  and  cases  cited.  Schmidt  v.  Blood,  9  Wend. 
208.  Foote  v.  Storrs,  2  Barb.  S.  C.  R.  326.)  And  no  good 
reason  is  perceived,  why  they  should  be  bound  to  receive  on  their 
premises  any  persons  against  their  will,  after  reasonable  notice. 

If  the  foregoing  views  are  correct,  the  plaintiff  having  re- 
voked the  license  as  to  the  defendant,  the  entry  of  the  defendant 
for  which  the  action  was  brought  was  a  trespass,  and  the  defend- 
ant was  liable  therefor. 

Assuming  that  the  trespass  was  committed  out  of  the  county 
of  Yates,  the  justice  had  jurisdiction.  {Grave."  /.  AfcKcon,  2 
Denio,  639.     Code,  ^  53.) 


CAYUGA— JUKE,  1855.  2/)3 


Mitchell  V.  Worden. 


The  possession  of  the  premises  by  the  plaintiff  was  sufficient 
evidence  of  his  right  to  brinor  the  action. 

In  mj  opinion  the  judgment  of  the  justice  was  right,  and  that 
cf  the  county  court,  affirming  it,  should  be  affirmed. 

Judgment  affirmed. 

[Cayuga  General  Term,  June  4, 1855.  Selden,  Johnson  and  T.  R,  Stroiig, 
Justices.] 


Mitchell  and  others  vs.  Worden. 

The  law  does  not,  in  ordinary  cases,  impose  upon  a  purchaser  of  property  the 
duty  of  disclosing  to  the  seller,  at  or  before  the  sale,  the  state  of  his  pecuniary 
circumstances,  however  desperate  they  may  be,  and  be  known  by  him  to  be. 

This  general  principle  is  applicable,  notwithstanding  there  has  been  a  long 
course  of  dealing  between  the  parties,  in  the  course  of  which  credit  has  been 
given  to  the  purchaser,  and  he  has  punctually  performed  his  engagements; 
and  his  insolvency  has  occurred  during  those  dealings. 

>io  relation  of  trust  or  confidence  is  thereby  created,  which  should  entitle  the 
seller  to  expect  of  the  purchaser,  or  require  of  the  purchaser,  as  a  legal  dutj^, 
to  communicate  to  the  seller  information  of  his  inability  to  j)ay  all  his  debts 
while  he  continues  his  business  and  the  management  of  his  affairs. 

Therefore,  although  a  purchaser,  at  the  time  of  making  an  additional  purcha.<e 
from  persons  with  whom  he  has  been  in  the  habit  of  dealing,  is  insolvent,  and 
he  well  knows  his  insolvency,  and  intentionally  conceals  it  from  the  vendors, 
by  simply  withholding  his  knowledge  on  the  subject,  without  otherwise  say- 
ing or  doing  any  thing  to  mislead,  and  he  still  retains  the  possession  of  proj>- 
orty,  and'is  pursuing  his  business  as  before,  he  is  not  thereby  guilty  of  a  fraud, 
entitling  the  vendor  to  avoid  the  s^e. 

But  if  the  purchaser,  at  the  time  of  making  a  new  purchase,  is  not  only  insol- 
vent, and  knows  himself  to  be  so,  but  has  performed  an  open  and  notorious 
act  of  insolvency,  by  breaking  up  his  business  and  assigning  his  property  for 
the  benefil  of  his  creditors,  it  is  his  duty,  arising  out  of  his  previous  dealing 
with  the  vendors,  to  communicate  that  fact  to  them,  before  the  sale ;  and  the 
violation  of  that  duty  amounts  to  a  fraud. 

A  person  receiving  the  property  thus  obtained,  from  the  purchaser,  without  pay- 
ing any  thing  on  account  of  it,  and  with  notice  of  facts  which  render  hinc 
legally  chargeable  with  knowledge  of  the  fraud,  will  not  be  considered  a  bona 
fide  purchaser. 


254  CASES  IX  THE  SUPRE^IE  COURT. 

Mitclicll  V.  Worden. 

MOTION  by  the  plaintiifs  for  anew  trial,  upon  a  case.  The 
complaint  alleged  that  the  plaintiifs  were  partners,  doing 
business  as  merchants,  at  Philadelphia;  that  on  the  ITth  of 
November,  1853,  Edward  W.  McCabe,  a.  liquor  merchant  at 
Auburn,  sent  an  order  to  the  plaintiffs,  by  mail,  directing  them 
to  send  to  him  a  cask  of  old  pale  brandy,  of  78  gallons,  and  a 
cask  of  gin ;  and  that  on  the  23d  of  November  he  also  ordered 
six  baskets  of  champagne  wine ;  that  on  the  2d  of  December, 
1853,  the  plaintiffs  shipped  and  sent  to  the  said  McCabe  the 
brandy  and  wine  so  ordered,  which  were  of  the  value  of  about 
^400 ;  that  the  said  brandy  and  wine  were  shipped  and  sent 
by  the  usual  and  ordinary  mode  of  conveyance,  and  reached  the 
depot  and  store  house  of  the  New  York  Central  Rail  Road  at 
Auburn,  on  or  about  the  middle  of  December,  and  the  same 
remained  and  continued  until  about  the  26th  day  of  that  month 
in  the  possession  and  custody  of  the  said  rail  road  company,  at 
said  depot,  as  a  middle  man  between  said  McCabe  and  the 
plaintiffs.  The  complaint  further  alleged  that  at  the  date  of 
the  said  McCabe's  first  order,  and  prior  thereto,  he  the  said 
McCabe  was  in  straitened  and  failing  circumstances,  and  insol- 
vent, to  the  knowledge  of  said  McCabe  and  the  defendant  in 
this  action ;  and  at  the  date  of  the  said  second  order,  he,  the 
said  McCabe  had,  to  the  knowledge  of  the  defendant,  made  and 
transferred  to  certain  assignees  his  property,  for  the  benefit  of 
his  creditors,  and  was  insolvent,  to  the  knoAvledge  of  said  Mc- 
Cabe and  the  defendant ;  and  that  McCabe  concealed  said  in- 
solvency from  the  plaintiffs,  with  intent  to  defraud  them.  That 
at  the  date  of  said  first  order,  and  prior  thereto,  and  all  the 
time  subsequent  thereto,  up  to  and  until  about  the  28th  day  of 
December,  1858,  the  plaintiffs  were  entirely  ignorant  of  the 
said  straitened,  and  failing,  and  insolvent  circumstances  ^f  the 
said  McCabe,  and  of  said  assignment  by  him,  and  believed  him 
to  be  in  good  circumstances,  and  to  be  dealing  and  doing  busi- 
ness in  good  faith,  and  the  said  brandy  and  chainpagne  Avere 
shipped  and  sent  to  said  McCabe  by  the  plaintiffs,  in  conformity 
to  said  orders,  in  entire  good  faith,  and  solely  because  of  their  en- 
tire reliance  upon  the  supposed  good  faith  of  said  McCabe,  and 


CAYUGA— JUNK  1855.  255 


Mitchell  V.  Word'.'n. 


their  belief  in  the  goodness  and  sufficiency  of  the  pecuniary  and 
business  circumstances  and  solvency  of  the  said  McCabe  ;  and 
upon  an  indefinite  and  uncertain  credit  therefor.  That  on  or 
about  the  26th  day  of  December,  1853,  the  defendant,  being 
advised  and  cognizant  of  the  straitened,  failing,  and  insolvent  cir- 
cumstances of  the  said  McCabe,  and  of  the  assignment  theretiv 
fore  made  by  said  McCabe,  of  his  property  for  the  benefit  ot 
certain  of  his  creditors,  and  being  advised  and  cognizant  of  the 
absolute  refusal  which  had  been  theretofore  made  by  said  rail 
road  company  to  deliver  up  or  surrender  said  brandy  and  cham- 
pagne to  said  McCabe,  because  of  his  known  insolvency  and  as- 
signment, and  being  advised  and  cognizant  of  the  absolute 
refusal  which  had  been  theretofore  made  by  the  assignee  of 
said  McCabe,  under  said  assignment,,  to  take  or  receive  said 
brandy  and  champagne,  from  said  rail  road  company,  as  a  part 
or  portion  of  said  assigned  property  of  McCabe,  and  being  ad- 
vised and  cognizant  of  the  non-payment,  and  existing  indebted- 
ness of  said  McCabe  for  said  goods,  and  the  inability  of  said 
McCabe  to  pay  them  for  the  same,  and  of  the  same  being  in  the 
possession  and  custody  of  said  rail  road  company,  as  a  middle 
man  between  the  said  plaintiffs  and  said  McCabe,  or  his  said 
assignee,  did  wrongfully  and  fraudulently  remove  said  brandy 
and  champagne  from  the  premises  of  said  rail  road  company, 
against  their  will,  and  with  intent  to  defeat  the  right  of  stop- 
page in  transitu  of  said  property  by  said  plaintiffs,  and  there- 
upon concealed  and  secreted  the  same  from  the  plaintiffs,  and 
upon  a  demand  which  was  made  upon  the  defendant,  of  said 
property,  by  the  plaintiffs,  on  the  29th  day  of  December,  1853, 
and  immediately  on  the  discovery  of  the  premises  aforesaid,  and 
before  suit,  the  defendant  wrongfully  and  fraudulently  refused 
to  surrender  or  yield  up  the  same  to  the  plaintiff,  to  their  dam- 
age $400,  and  interest  from  December  29, 1853.  The  same  cause 
of  action  was  set  out,  in  similar  form,  in  other  counts. 

The  defendant,  by  his  answer,  denied  each  and  every  allega- 
tion contained  in  the  complaint.  He  also  denied  that  the  right, 
title  and  property  in  the  said  brandy  and  wine  were  in  the 
plaintiffs,  or  in  any  stranger  or  third  person. 


•2.56  CASES  IN  THE  SUPREME  COURT. 


MitclioU  ?•    VV Olden. 


On  the  trial  McCabe  was  examined  as  a  witness  for  the 
plaintiffs,  and  proved  the  signing  and  sending  of  the  orders  to 
the  plaintiffs,  by  him.  He  further  testified  :  "  I  afterwards  saw 
the  property  ordered,  in  the  store  house  at  the  depot  in  Au- 
burn, or  I  was  told  it  was  there  ;  the  order,  which  is  not  dated, 
(the  first  one,)  was  sent  on  the  7th  day  of  November,  1853;  the 
goods  were  worth  over  $375 ;  the  brandy  was  worth  from  ^4  to 
$4.10  per  gallon,  aT\d  the  casks  contained  about  80  gallons ;  the 
gin  I  took  and  used  and  left  the  brandy  in  the  car  house  ;  there 
were  six  baskets  of  champagne,  worth  from  $14  to  $18  per 
basket ;  I  have  been  in  the  habit  always  of  leaving  my  articles 
in  the  car  house  until  I  wanted  them  and  then  I  took  them 
away.  The  order  dated  November  23,  1853,  was  the  last  order 
I  made  upon  the  plaintiffs  ;  the  goods  so  ordered  b}^  me  were 
not  paid  for;  they  were  obtained  on  credit ;  our  understanding 
was  six  months.  On  the  21st  day  of  November,  1853,  I  made  a 
general  assignment  of  my  property  for  the  benefit  of  creditors  ; 
I  did  not  at  the  time  of,  or  prior  to  the  time  of  sending  either  of 
the  orders  for  goods  to  the  plaintiffs,  communicate  to  the  plain- 
tiffs the  condition  of  my  pecuniary  affairs,  or  that  I  had  made 
an  assignment.  I  think  one  of  the  plaintiffs  told  me  on  the 
8th  of  December,  that  he  saw  the  fact  of  my  assignment  ad- 
vertised. The  brandy  came  on  the  8th  day  and  the  wine  came 
on  the  9th  day  of  December,  1853."  On  his  cross-examination 
the  witness  said:  '•  I  had  not  any  idea,  when  the  first  order  was 
sent,  of  making  an  assignment  of  my  property." 

It  was  proved  that  the  goods  arrived  at  the  depot  about  the  9th 
or  10th  of  December,  1853,  and  remained  there  until  the  26th  of 
that  month,  when  they  were  delivered  to  a  carman  by  the  name 
of  iVustin,  who  had  been  McCabe's  cartman  and  was  in  the 
habit  of  taking  his  goods  away. 

Margaret  J.  McCabe  was  then  called  by  the  plaintiffs  and 
testified :  "  I  was  at  home  in  Auburn  in  December,  1853  ;  I 
know  the  defendant  Worden^  I  had  a  conversation  with  the 
defendant  during  the  month  of  December  last,  at  my  house, 
relative  to  the  goods  then  at  the  rail  road  depot ;  the  conver- 
sation was  about  my  selling  the  goods  to  him  ;  I  wanted  to  da 


CAYUGA— JUXE,  1855.  257 


Mitchell  c.  Woiden. 


SO  ;  I  made  an  arrangement  with  the  defendant  and  he  was  to 
take  the  goods  ;  I  sold  him  the  goods  ;  I  seftt  Austin  the  cart- 
man  to  the  depot  to  get  the  goods  and  take  them  to  the  de- 
fendant's ;  Mr.  Worden  afterwards  told  me  he  had  received  the 
goods;  Mr.  Worde/i  did  not  pay  me  for  the' goods;  there  were 
no  particular  terms  of  sale  ;  Mr.  McCabe  was  then  indebted  to 
Mr.  Worden;  Mr.  Worden  was  to  take  up  some  notes  at  the 
bank  given  by  Mr.  McCabe ;  the  transfer  by  me  of  the  goods 
was  made  on  account  of  Mr.  McCabe's  indebtedness  to  Mr. 
Worden  ;  think  I  have  a  faint  recollection  of  something  said 
about  ^500.  something  said  about  notes;  cannot  tell  exact 
amount  of  McCabe's  indebtedness  to  Worden ;  I  told  the  de- 
fendant that  John  E.  Beardsley  said  defendant  was  not  protect- 
ed in  McCabe's  assignment,  and  he  had  rather  the  defendant 
would  have  the  goods  than  any  one  else,  and  that  somebod}'- 
would  have  them  if  the  defendant  did  not  have  them,  and'  also 
something  said  about  keeping  the  defendant  still  in  regard  to 
the  assignment :  the  defendant  said  he  did  not  want  to  have 
any  thing  to  do  with  the  goods  ;  I  gave  an  Irishman  the  money 
to  pay  the  freight  on  the  goods  ;  the  defendant  knew  I  was 
going  to  pay  the  freight ;  the  goods  were  part  champagne  ;  the 
defendant  told  me  there  were  baskets  of  champagne  there  ; 
iilr.  McCabe  was  in  Rochester  at  the  time  of  this  conversation  ; 
the  defendant  has  not  at  any  time  since,  paid  me  for  the  goods." 
Edward  W.  McCabe  was  then  recalled  by  the  plaintiffs  and  tes- 
tilied :  "There  were  two  notes  of  mine  indorsed  by  the  defend- 
ant which  lay  in  Auburn  bank;  both  notes  were  due  at  the 
time  of  the  assignment  made  by  me  ;  I  have  not  paid  Worden 
in  any  other  Avny  than  by  turning  out  this  property  ;  notes  were 
both  signed  by  McCabe  and  indorsed  by  the  defendant ;  one 
note  was  for  $225,  the  other  for  $200 ;  one  was  payable  in 
four  months,  the  other  in  three  months." 

The  plaintiff  then  proved  a  demand  of  the  goods,  of  the  de- 
fendant, before  tlie  commencement  of  the  suit,  and  a  neglect  or 
refusal  to  deliver. 

Tiie  defendant's  counsel  moved  the  court  to  nonsuit  the  plain- 
tiffs on  the  grounds,  (1.)  That  on  the  2d  day  of  Decembefj 

Vol.  XX.  33 


I 


258  CASES  IN  THE  SUPREME  COURT. 

Mitchell  V.  Worden. 

1853,  when  the  phiintiffs  shipped  the  brandy  and  nine  from 
PhiLidelphia  to  McCabe  at  Auburn,  the  delivery  was  absolute 
and  unqualified,  and  the  title  in  and  to  the  same  then  passed  to 
McCabe.  (2.)  That  the  brandy  and  wine  having  arrived  at  the 
depot  in  Auburn,  was  subject  to  McCabe's  order,  and  the  right 
to  stop  the  same  in  transitu  was  at  an  end,  and  the  plaintiffs 
had  shown  no  property  in  the  goods.  (3.)  That  the  fact,  if 
true,  that  McCabe  Avas  insolvent  when  he  ordered  the  goods, 
was  not  evidence  of  fraud.  That  there  was  not  sufficient  evidence 
to  sustain  the  action.  After  argument  by  the  respective  coun- 
sel, his  honor,  the  judge,  granted  the  motion  and  nonsuited  the 
plaintiffs.  To  which  decision  the  counsel  for  the  plaintiffs 
excepted.  And  the  plaintiffs  except  to  said  decision  on  the 
grounds,  (1.)  That  the  evidence  entitled  the  plaintiffs  to  a 
verdict.  (2.)  That  when  the  plaintiffs  demanded  the  goods 
of  the  defendant,  the  right  of  stoppage  in  transitu  was  in  force. 
(3.)  That  there  Avas  sufficient  evidence  of  fraud  to  go  to  the  jury. 
(4.)  McCabe's  title  to  the  goods  had  passed  to  his  assignees  before 
the  transfer  to  the  defendant,  and  prima  facia  the  evidence  en- 
titled the  plaintiffs  to  a  verdict  against  the  defendant.  (5.)  The 
transfer  by  Mrs.  McCabe  of  the  goods  to  the  defendant  was 
invalid  against  the  plaintiffs.  (6.)  The  bona  fides,  sufficiency 
of  consideration  and  notice,  were  questions  that  affected  the 
defendant's  purchase,  and  should  have  been  left  to  the  jury. 

Geo.  Rathbun,  for  the  plaintiffs. 

.  Johfi  Porter,  for  the  defendant. 

^i/  the  Court,  T.  R.  Strong,  J.  The  basis  of  this  action 
is,  that  the  sales  of  the  property  in  question  by  the  plaintiffs  to 
MclSabe,  were  obtain'ed  by  the  latter  by  a  fraudulent  conceal- 
,raent  from  the  plaintiffs  of  important  facts  in  regard  to  his 
pecuniary  circumstances,  which  it  was  his  duty  to  disclose  to 
them,  wherefore  the  sales  were  void ;  that  the  defendant  is  not 
a  bona  fide  purchaser  from  McCabe  ;  and  that  he  wrongfully 
withholds  and  has  converted  the  property. 


CAYUGA— JU?fE,  1855.  259 


Mitchell  V.  Worden. 


In  1  elation  to  the  brandy,  a  portion  of  the  property,  I  am  sat- 
kSded  the  evidence  falls  entirely  short  of  sustaining  the  action. 
The  order  for  the  brandy  was  forwarded  to  the  plaintiffs  some 
days  before  McCabe  made  an  assignm'ent  ;  he  did  not  then,  as 
he  testified,  contemplate  making  an  assignment;  it  does  not 
appear  that  he  was  then  insolvent,  or  that  he  understood  he  was 
so,  except  as  it  may  be  inferred  from  the  mere  fact  that  he 
soon  after  m.ade  a  general  assignment  for  the  benefit  of  his  cred- 
itors, without  any  proof  of  the  extent  of  his  inability  to  pay  his 
debts  ;  there  is  no  evidence  of  an  intention  on  his  part  not  to 
pay  for  the  property,  or  of  any  fraudulent  intent,  in  making 
the  purchase  ;  and  for  aught  that  appears,  his  circumstances 
were  as  good  at  that  time  as  they  had  been  at  any  time  while 
he  had  been  a  customer  of  the  plaintiffs. 

But  assuming  that  McCabe  was,  at  the  time  of  the  purchase 
of  the  brandy,  insolvent ;  that  his  circumstances  had  become 
reduced  during  the  period  he  was  buying  of  the  plaintiffs  from 
time  to  time  on  credit,  and  meeting  his  engagements  as  to  pay- 
ments ;  and  that  he  well  knew  his  insolvency,  and  intentionally 
concealed  it  from  the  plaintiffs,  by  simply  withholding  his 
knowledge  on  the  subject,  without  otherwise  saying  or  doing 
any  thing  to  mislead ;  yet  retained  the  possession  of  property 
and  was  pursuing  his  business  as  theretofore— he  was  not,  in 
my  opinion,  thereby  guilty  of  a  fraud,  entitling  the  plaintiffs  to 
avoid  the  sale.  The  law  does  not,  in  ordinary  cases,  impose 
upon  a  purchaser  of  property  the  duty  to  disclose  to  the  seller, 
at  or  before  the  sale,  the  state  of  his  pecuniary  circumstances, 
however  desperate  they  may  be,  and  be  known  by  him  to  be. 
Although  the  knowledge  may  be  of  the  highest  importance  to 
the  seller,  for  the  protection  of  his  interests,  the  duty  of  com- 
municatinor  it  is  only  a  moral  duty,  belonfjinfj  to  a  lar2;e  class 
of  similar  duties  denominated  by  Chancellor  Kent,  "imperfect 
obligations  which  are  binding  in  conscience,  but  which  human 
laws  do  not  and  cannot  undertake  directly  to  enforce."  (2  Kent's 
Com.  4:th  ed.  490.)  Parties  to  contracts  must  themselves  ex- 
ercise reasonable  care  to  guard  against  loss,  and,  in  general, 
that  degree  of  care  requires  the  party  giving  credit  to  make 


260  CASES  IN  THE  SUPREME  COURT. 


Mitchell  V.  Wordcn. 


inquiries  of  the  party  to  whom  it  is  given,  at  least,  in  regard  to 
his  ability  to  pay.  For  a  fraudulent  misrepresentation  by  the 
purchaser,  of  important  facts  in  respect  to  his  circumstances, 
accompanied  with  damage,  the  law  affords  a  remedy ;  the  sale 
may  be  avoided  ;  and  an  action  for  the  fraud,  to  recover  the 
damages,  will  lie.  The  general  principle  above  stated,  that  the 
purchaser  is  under  no  obligation  to  disclose  to  the  seller  his  in- 
solvency, although  known  to  him,  is,  I  think,  equally  applicable 
notwithstanding  there  has  been  a  long  course  of  dealing  be- 
tween the  parties,  in  the  course  of  which  credit  has  been  given 
to  the  purchaser  and  he  has  punctually  performed  his  engage- 
ments— his  insolvency  having  occurred  during  those  dealings. 
No  relation  of  trust  or  confidence  is  thereby  created,  which 
should  entitle  the  seller  to  expect  of  the  purchaser,  or  require 
of  the  purchaser,  as  a  legal  duty,  to  communicate  to  the  seller 
information  of  his  inability  to  pay  all  his  debts,  while  he  con- 
tinues his  business  and  the  management  of  his  aflfairs.  If  there 
is  an  obligation  to  disclose  in  such  a  case,  where  does  it  com- 
mence ?  at  insolvency,  or  on  the  way  to  insolvency,  and  at  what 
point,  and  what  proof  of  knowledge  is  required?  An  attempt 
to  extend  the  protection  of  the  law  to  purchasers,  so  far  as  to 
impose  such  an  obligation,  would  work  much  more  injustice  than 
it  would  remedy. 

In  relation  to  the  sale  of  the  wine,  the  other  portion  of  the 
property  in  question,  there  is  an  additional  fact  to  those  which 
exist  and  are  assumed  to  exist,  in  respect  to  the  sale  of  the 
brandy,  which,  upon  the  question  of  fraud  in  the  sale,  is  entitled 
to  much  consideration.  The  order  for  the  sale  of  the  wine  was 
not  made  until  two  days  after  the  assignment  by  McCabe,  and 
when  of  course  he  was  entirely  divested  of  property.  Not  only 
was  he  insolvent,  and  known  by  him  to  be  so,  but  he  had  then 
performed  an  open  and  notorious  act  of  insolvency.  Was  it  not 
his  duty,  arising  out  of  his  previous  dealings  with  the  plain- 
tiffs, to  communicate  that  fact  to  them  before  the  sale.  The 
plaintiffs  carried  on  business  at  Philadelphia,  remote  from  Mc- 
Cabe, whose  place  of  business  was  the  city  of  Auburn  ;  they 
had  from  time  to  time  for  the  period  of  five  years,  made  sales 


CAYUGA- -JUNE,  1855.  26 1 


Mitchell  V.  Worden. 


to  him,  and  he  had  paid  them  a  great  deal  of  money  ;  their 
dealings  would  naturally  excite  the  confidence  of  the  plaintiffs 
in  him,  and  lead  them  to  expect,  at  least,  that  in  case  of  his 
breaking  up  his  business  and  assigning  his  property  for  the 
benefit  of  his  creditors,  he  would  on  applying  to  them  to  make 
a  further  purchase,  inform  them  of  those  facts.  I  am  not  pre- 
pared to  say  that  to  this  extent  the  plaintiffs  had  not  a  right  to 
repose  confidence  in  him,  and  to  be  protected  in  so  doing  by 
law.  I  think  they  had ;  and  that  thus  far  McCabe  was  under 
a  legal  duty,  the  violation  of  which  was  fraud.  Here  is  a  plain, 
well  defined  limit  for  the  commencement  of  a  lei^al  obligation — 
a  course  of  dealing  calculated  to  produce  confidence,  followed 
by  closing  business  and  giving  up  the  property  for  creditors. 
Thus  far,  legal  pi'otectiun  can  in  practice  be  afforded  to  sellers 
without  injustice  to  purchasers.  {Story^s  Eq.  Jur.  §§  204,  207. 
Bench  v.  Sheldon,  14  Barb.  66,  and  cases  cited.) 

It  cannot  be  claimed,  upon  the  evidence,  that  the  defendant 
was  a  bona  fide  purchaser.  He  had  notice  of  facts  which  render 
him  legally  chargeable  with  knowledge  of  the  fraud  ;  and  be- 
sides it  does  not  appear  that  he  paid  any  thing  on  account  of  the 
property,  or  that  his  situation  has  been  in  any  way  changed. 

I  do  not  perceive  that  the  doctrine  of  stoppage  in  transitu 
has  any  relation  to  this  case.  If  the  right  existed  while  the 
property  was  at  the  depot  in  Auburn,  it  was  certainly  at  an  end 
after  the  property  came  into  the  possession  of  the  defendant. 

A  new  trial  must  be  granted,  with  costs  to  abide  the  event. 

[CAYnoA  Genera:^  Term,  June  4, 1855.     Selden,  Johnson  and  T.  R.  Strong 
Justices.] 


262         CASES  IN  THE  SUPREME  COURT. 


Smith  vs.   Compton. 

\n  agreement  for  the  submission  of  matters  in  difference  to  arbitration,  followed 
by  tiie  arbitrators  entering  upon  their  duties— the  arbitration  being  still  pend- 
ing and  undetermined — constitutes  no  defense  or  legal  obstacle,  in  abatement 
or  in  bar,  to  an  action  for  the  same  matters,  commenced  after  the  making  of 
the  agreement. 

Such  an  agreement  is  a  mere  authority,  revocable  by  either  party,  at  any  time 
before  the  case  is  finally  submitted  to  the  arbitrators  for  decision,  subject  only  to 
liability  for  damages. 

A  justice  of  the  peace  cannot  be  permitted  to  give  parol  evidence  of  what  took 
place  before  him,  it  seems.  But  if  his  docket  is  afterwards  given  in  evidence 
the  error  will  be  cuied. 

Parol  evidence  is  inadmissible  to  contradict  the  docket  of  a  justice. 

A  consent  of  the  parties,  in  presence  of  the  justice,  that  a  cause  shall  be  submit- 
ted to  the  justice  conditionally,  with  a  reservation  to  the  plaintiff  of  liberty 
to  withdraw  the  suit,  is  binding  on  the  parties,  and  if  entered  by  the  justice 
in  his  docket,  it  forms  a  part  thereof,  and  is  no  more  subject  to  be  contradict- 
ed than  any  other  part  of  the  docket. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  ref- 
eree. The  plaintiif's  complaint  contained  three  counts. 
In  the  first  count  the  plaintiff"  claimed  to  recover  for  goods, 
wares  and  merchandise,  sold  and  delivered  to  the  defendant, 
specifying  the  time,  quality  and  value.  In  the  second  count,  he 
claimed  to  recover  for  money  paid,  laid  cut  and  expended,  spe- 
cifying time  and  amount ;  and,  in  the  third  count  he  claimed  to 
recover  for  two  years'  work,  labor,  and  services  performed,  and 
goods,  wares  and  merchandise  sold,  and  money  paid,  to  the 
amount  of  one  thousand  dollars,  and  claimed  that  the  defendant 
was  indebted  in  a  balance  of  five  hundred  dollars.  The  defend- 
ant, in  his  answer,  denied  generally  and  specifically  each  and 
every  allegation  of  the  plaintiff'-s  complaint.  2d.  The  answer 
set  up  a  counter-claim  against  the  plaintiff"  for  goods,  wares 
<fcc.,  and  claimed  that  the  plaintiff"  was  indebted  to  the  defend- 
ant in  the  sum  of  five  hundred  doUars.  3d.  The  answer  set  up 
a  submission  in  writing  to  arbitration  by  the  plaintiff"  and  de- 
fendant; that  the  arbitrators  entered  upon  the  discharge  of 
their  duties,  and  that  the  same  matters  for  which  this  action  is 
Drought  were  still  pending  and  undetermined.     4th.  The  an 


CAYUGA— JUNE,  1855.  26'i 


Smith  V.  Compton. 


syer  also  set  up  in  bar  of  a  recovery  by  the  plaintiff,  that 
before  the  commencement  of  this  action  the  plaintiff  impleaded 
the  defendant  in  a  justice's  court  before  one  Lyman  S.  Kendall ; 
that  the  plaintiff  proved  and  gave  in  evidence  the  same  iden- 
tical account  for  which  this  action  is  brought,  and  submitted 
the  same  to  the  justice,  who  rendered  judgment  in  favor  of  tho 
defendant.  5th.  The  answer  also  set  up  in  bar  the  commence- 
ment of  an  action  by  the  plaintiff  against  the  defendant,  in  a 
justice's  court,  before  one  Lyman  S.  Kendall,  to  recover  the 
value  of  a  wagon  sold  by  the  plaintiff  to  the  defendant,  before 
the  commencement  of  this  action  which,  was  the  wagon  specified 
in  the  complaint ;  that  a  trial  was  had,  the  same  was  submitted 
to  the  justice,  and  judgment  rendered  for  the  defendant.  The 
plaintiff  replied  to  the  several  matters  contained  in  the  answer, 
denying  the  same  either  specifically  or  generally. 

On  the  trial  before  the  referee  the  defendant  produced  a 
written  submission  to  arbitration,  executed  by  the  plaintiff 
and  defendant,  before  the  commencement  of  this  action,  of  all 
matters  in  controversy  in  this  action.  The  plaintiff  admitted 
the  execution  of  the  instrument. 

The  defendant  offered  in  evidence  the  said  written  submis- 
sioH,  and  then  to  follow  it  up  by  showing  that  the  said  submis- 
sion and  matters  were  still  pending  and  undetermined  before 
the  arbitrators.  The  plaintiff's  counsel  objected  to  the  evidence, 
upon  the  ground  that  the  defendant  in  his  answer  having 
set  up  matters  in  bar  of  the  plaintiff's  action  had  thereby 
waived  all  matters  in  abatement  of  said  action,  and  the  referee 
"sustained  the  objection  ;  the  defendant's  counsel  excepted.  The 
defendant's  counsel  then  offered  to  prove  the  further  fact,  in 
addition  to  the  above,  that  the  arbitrators  in  the  said  submis- 
sion named,  in  pursuance  of  the  submission,  entered  upon  the 
discharge  of  their  duties,  as  such  arbitrators,  and  that  the  said 
matter  A\as  still  pending  and  undetermined.  The  plaintiff's 
counsel  objected,  upon  the  same  grounds,  and  the  referee  sus- 
tained the  objection  ;  to  which  decision  the  defendant's  counsel 
excepted.  Lyman  S.  Kendall  was  then  sworn,  on  the  part  of 
the  defendant,  and  testified,  "  I  was  an  acting  justice  of  the 


264        CASES  IN  THE  SUPREME  COURT. 

Smith  V.  Conipton. 

peace,  in  the  tovrr*  of  Tyrone,  in  April,  1852.  The  plaintiff 
commenced  an  action  against  the  defendant  by  summons  on  the 
6th  of  April,  1852,  returnable  on  the  16th  of  April.  On  the 
return  of  the  summons  the  parties  appeared  and  issue  was 
joined.  The  plaintiff  complained  in  writing  for  a  wagon  sold 
and  delivered,  a  wagon  taken  and  sold,  and  for  the  use  of  a 
wagon,  and  demanded  judgment  for  $100.  The  defendant's 
answer,  Avhich  was  in  writing,  denied  each  and  every  allegation, 
and  set  up  a  counter-claim."  The  defendant's  counsel  then 
asked  the  witness  what  further  took  place  before  him  on  the 
trial.  The  plaintiff's  counsel  objected  to  the  justice's  giving 
parol  testimony  of  what  took  place  before  him,  upon  the 
grounds  that  his  docket  was  the  highest  evidence,  and  should 
be  introduced,  to  prove  what  took  place  before  the  justice. 
The  referee  sustained  the  objection,  and  the  defendant's  counsel 
excepted.  The  defendant's  counsel  then  read  the  justice's  dock- 
et in  evidence.  Among  other  things,  the  docket  contained  the 
following  entry :  "  May  1st.  H.  C.  Vandnzer  appeared  for 
plaintiff,  defendant  appeared  personally,  and  proceeded  to  try  the 
cause.  Witnesses  sworn,"  &c.  "  By  a  stipulation  of  plaintiff's 
and  defendant's  counsel  it  was  agreed  that  when  plaintiff  le- 
turnod  he  should  have  the  privilege  of  withdrawing  the  si.'t. 
May  3d.  Plaintiff  withdrew  the  suit  and  judgment  was  reno\'.r- 
ed  against  plaintiff  for  $1.97  costs."  The  defendant's  coui  sel 
then  offered  to  show,  l)y  the  justice,  that  Smith,  the  plainnff, 
came  home  on  the  same  day  of  the  trial  and  after  the  same  was 
closed  on  Saturday,  and  that  the  justice  informed  him  of  the  trial 
and  stipulation,  that  he  had  a  right  to  then  withdraw  the  suit 
and  called  on  him  to  know  what  he  was  going  to  do  about  it,  and 
that  Smith  then  declined  to  withdraw  it.  The  plaintiff's  counsel 
objected  to  the  evidence,  upon  the  ground  that  the  justice  could 
not  give  parol  evidence  to  contradict  his  docket,  and  upon  the 
farther  ground  that  the  defendant's  counsel,  having  introduced 
the  docket  in  evidence,  was  concluded  by  it,  and  had  no  right 
to  introduce  evidence  tending  to  impeach  it,  and  the  referee  sus- 
tained the  objection,  and  defendant's  counsel  excepted.  The 
defendant's  counsel  then  offered  to  prove  by  the  justice  that 


CAYUGA- -JUNE,  1855.  •  265 


Smith  V.  Compton. 


3n  Monday  in  the  forenoon  the  justice  called  on  the  plaintiff, 
Smith;  again,  to  know  whether  he  was  going  to  with(lra*v  the 
3uit  or  what  he  was  going  to  do,  and  that  Smith  then  declined 
tp  withdraw  it ;  that  in  the  afternoon  of  the  same  day,  Smith 
same  to  the  office  of  the  justice,  and  told  the  justice  he  M-ould 
withdraw  the  suit,  and  the  justice  entered  judgment  as  appear- 
ed in  the  docket.  The  plaintiff's  counsel  objected  to  the  evi- 
dence, upon  the  same  grounds,  and  the  referee  sustained  the 
objection.  Defendant's  counsel  excepted.  The  defendant  then 
offered  to  show  by  the  justice  that  after  the  witnesses  were 
sworn  the  cause  was  abolutely  and  unconditionally  submitted  to 
the  justice,  on  the  first  day  of  May,  1852.  The  plaintiff's 
counsel  objected  to  the  evidence,  upon .  the  same  ground,  and 
the  referee  sustained  the  objection,  ami  the  defendant's  counsel 
excepted.  The  defendant's  counsel  then  -offered  to  show  by  the 
justice  that  the  entry  on  the  docket,  in  relation  to  the  stipula- 
tion, was  made  by  the  justice  by  the  directions  of  the  plaintiff, 
and  his  counsel,  after  the  third  day  of-  May.  To  which  the 
plaintiff's  counsel  objected,  and  the  referee  sustained  the  objec- 
tion and  the  defendant's  counsel  again  excepted. 

The  referee  found  the  following  facts  :  The  plaintiff  was  in 
the  employment  of  the  defendant  as  clerk,  one  year  and  eleven 
months,  ending  31st  March,  1851,  and  that  his  services  were 
Avorth  at  the  rate  of  $375  a  year,  amounting  to  the  sura  of 
$718.75.  That  between  the  31st  day  of  March,  1851,  and  the 
time  of  the  commencement  of  this  action,  the  defendant  appro- 
priated and  converted  to  his  own  use,  a  two  horse  lumber  wagon, 
the  property  of  the  plaintiff,  without  any  express  contract  foe 
the  purchase  thereof;  that  said  wagon  at  the  time  of  such  con- 
version was  worth  the  sum  of  $40,  and  as  a  conclusion  of  law 
thereupon,  the  referee  found  that  the  defendant  became  and  was 
indebted  to  the  plaintiff  at  the  time  of  the  commencement  of  this 
action  and  for  the  said  wagon  so  sold  and  delivered  to  him,  in  the 
sum  of  $40,  making  the  total  amount  of  the  plaintiff's  account 
proved,  $758.75.  The  defendant  proved  a  nook  account  against 
the  plaintiff,  amounting  in  all  to  the  sum  of  $563.62,  and  leav- 
ing a  balance  due  to  the  plaintiff  of  $195.13.     The  defendant 

Vol.  XX.  34 


2S6  •         CASES  IN  THE  SUPREME  COURT. 

Smith  V.  Coniplon. 

also  proved  that  tlie  plaintiff  commenced  an  action  against  him 
before  Lyman  Kendall,  Esq.  a  justice  of  the  peace  of  the  county 
•of  Steuben,  sometime  in  April,  1852 ;  that  on  the  16th  of  April 
aforesaid,  the  parties  appeared  by  counsel,  and  the  plaintiff  put 
in  his  complaint  in  writing,  in  one  count  whereof  he  complained 
against  the  defendant  for  the  conversion  of  a  wagon,  in  another 
for  the  sale  of  a  wagon,  and  in'another  for  the  use  of  a  wagon, 
and  claimed  damages  to  the  amount  of  $100.  The  defendant's 
answer  denied  the  plaintiff's  claim,  and  set  up  a  counter-claim, 
and  claimed  damages  to  the  amount  of  $100.  The  cause  was 
thereupon  adjourned  by  the  consent  of  the  parties  to  the  first 
day  of  May  then  next,  at  the  office  of  the  said  justice  in  Tyrone, 
at  which  time  and  place  the  plaintiff'  appeared  by  counsel,  and 
the  defendant  in  person,  and  proceeded  to  try  said  cause.  That 
after  the  evidence  Avas  closed  on  both  sides,  the  plaintiff  being 
absent,  by  a  stipulation  between  the  plaintiff  (by  his  counsel) 
and  the  defendant,  it  was  agreed  that  when  the  plaintiff  return- 
ed he  should  have  the  privilege  of  withdrawing  said  suit.  That 
on  the  3d  day  of  May,  1852,  the  plaintiff  withdrew  the  suit,  and 
judgment  was  rendered  against  him  for  $1.97  costs.  The  ref- 
eree also  found  as  fact,  and  as  a  conclusion  of  law  from  the  pre- 
ceding facts,  that  the  said  cause  was  not  "  finally  submitted"  to 
the  said  justice  to  be  decided  by  him  on  the  merits.  And  he 
fouml  as  further  conclusion  of  law,  that  the  judgment  so  ren- 
dered by  the  said  justice  was  not  a  bar  to  the  plaintiff's  claim 
in  this  action,  nor  any  part  thereof,  and  that  the  plaintiff  was 
entitled  to  judgment  against  the  defendant  for  $195.13,  be- 
sides costs. 

D.  J.  Sunderlin,  for  the  appellant. 

S'eely  ^  Wolcolf,  for  the  respondent. 

Uy  the  Court,  T.  R.  Strong,  J .  An  agreement  of  submis- 
sion of  matters  in  difference  to  arbitrators,  followed  by  the  arbi- 
trators entering  upon  their  duties — the  arbitration  being  still 
pending  and  undetermined — constitutes  no  defense,  or  legal  ob- 


CAYUGA— JUNE,   1855.  267 


Smith  V.  Compton. 


Btacle,  in  abatement  or  in  bar,  to  an  action  for  the  same  matters, 
commenced  after  the  making  of  the  agreement.  Such  an  agree- 
ment is  a  mere  authority,  revocable  by  either  party,  at  any  time 
before  the  case  is  finally  submitted  to  the  arbitrators  for  decis- 
ion, subject  only  to  liability  for  damages.  It  is  not  a  bar  to  a 
subsequent  action,  because  it  does  not  determine  the  right  of 
action  before  an  award  is  made,  and  no  sufficient  reason  is  per- 
ceived ■vvhy  it  should  preclude  an  action  by  operating  in  abate- 
ment of  it.  A  former  action  for  the  same  cause  is,  in  general, 
a  ground  of  abatement.  The  reason  given  in  Gould's  Plead- 
ing; {cli.  5,  §  122,  p.  283.)  is,  that  "  the  law,  which  abhors  a 
multiplicity  of  suits,  will  not  permit  a  defendant  to  be  harassed 
by  two  or  more  actions  for  the  same  thing,  where  a  complete 
remedy  might  be  obtained  by  one  of  them.  The  object  of  the 
rule  is  to  prevent  vexation."  This  reason  has  but  little  if  any 
force,  in  reference  to  a  pending  submission  to  arbitration.  The 
agreement  of  submission,  as  has  already  been  observed,  is  a 
meie  revocable  authority;  the  plaintiff  in  the  action  can  have 
no  security  that  his  adversary  will  not  revoke  it ;  and  if  the 
arbitration  should  proceed  to  an  award,  there  is  no  mode,  in  the 
case  of  a  common  law  arbitration,  of  enforcing  the  award  but  by 
action,  when  for  the  payment  of  money.  This  is  very  far  short 
of  the  complete  remedy  obtainable  by  an  action  founded  upon 
the  original  cause  of  action.  Besides,  very  little  vexation  com- 
paratively, can  be  accomplished  by  the  submission ;  not  suffi- 
cient to  require  that  protection  should  be  afforded  by  making  it 
pleadable  in  abatement.  But  there  is  another  reason  Avhy  a 
submission  to  arbitration  is  not  available  in  bar  or  abatement 
of  a  subsequent  action  for  the  same  cause  embraced  in  the  sub- 
mission. The  principle  is  well  settled,  that  a  specific  perform- 
ance of  an  agreement  to  refer  a  subject  of  controversy,  will  not 
be  enforced  by^  the  courts,  on  the  ground  that  it  is  against  public 
policy  thereby  to  exclude  parties  from  a  resort  to  the  proper 
judicial  trii)unals.  {Sto/y's  Eq.  Jtu^is A  14:57,  and  cases  there 
tiied.  Hagffart  v.  Morgan,  1  Selden.  422.)  Upon  the  same 
principle,  when  an  arbitration  has  been  entered  into  Avhich  ia 
still  pending — the  case  not  having  been  submitted  for  final  de- 


2(33  CASES  IN  THE  SUPREME  COURT. 


Smith  Vj  Compton. 


cision — it  will  not  be  allowed  to  affect  the  right  of  either  part^ 
to  seek  and  pursue  a  remedy  for  the  same  matter  in  a  court  of 
justice. 

The  doctrine  that  the  submission  of  a  pending  action  operates 
as  a  discontinuance,  has  nothing  to  do  with  the  question  consid- 
ered. The  ground  of  discontinuance  in  such  a  case  is,  that  by 
the  submission  the  parties  voluntarily  provide  another  mode  for 
the  trial  than  that  prescribed  by  law  in  the  action,  and  thereby 
substantially  agree  to,  and  do,  withdraw  the  cause  from  the 
court ;  to  which  agreement  there  can  be  no  valid  legal  objection. 

The  decision,  excluding  parol  proof  by  the  justice  of  what 
took  place  before  him,  if  erroneous,  did  no  harm,  as  his  docket 
was  immediately  given  in  evidence ;  but  I  am  inclined  to  think 
it  was  correct.  {Boomer  v.  Laine,  10  Wend.  525.  Brother- 
ton  V.  Wrio-ht,  15  id.  237.    Heermans  v.  WilUams.  11  id.  636.) 

The  evidence  offered,  in  contradiction  of  the  docket  of  the 
justice,  was,  I  think,  properly  rejected.  The  substance  of  the 
entry  in  relation  to  the  stipulation  was,  that  by  consent  of  the 
parties  the  cause  was  submitted  conditionally,  with  a  reserva- 
tion to  the  plaintiff  of  liberty  to  withdraw  the  suit,  which  con- 
sent was,  in  my  opinion,  binding  on  the  parties,  and  properly 
formed  a  part  of  the  docket.  (2  R.  S.  269,  §  244.)  It  was  no 
more  subject  to  be  C(?ntradicted  than  any  other  part  of  the 
docket.  {Hard  v.  JShipman,  6  Barb.  621.  Brintnall  v.  Fos- 
ter, 7  Wend.  103.     McLean  v.  Hugarin,  13  John.  184.) 

Proof  of  an  award  was  not  admissible  under  the  pleadings. 
It  is  not  alleged  in  the  ansAver  that  an  award  had  been  made  ; 
on  the  contrary  it  is  averred  that  the  submission  is  pending 
and  undetermined. 

This  disposes  of  all  the  points  made  on  the  argument  before 
us,  and  the  judgment  on  the  report  of  the  referee  must  be 
affirmed. 

[Cayuga  General  Term,  June  4, 1855.  Selden,  Johnson  and  7  R.  Strong, 
Justices.] 


CAY  CGA— JUNE,  1855.  269 


•  n,  I  20    2691 

Elizabeth  Jacques,  sur\dv()r,  <fec.  vs.  Josiah  Short.  21  w^ 

'  '  30a  460 

|_57a__lll 

Where  a  lease  is  executed  by  husband  and  wife,  of  land  in  which  the  wife  lias  an 
estate  for  life,  and  the  lessee  covenants,  in  terms,  to  pay  rent  to  both,  this  of 
itself  is  sufficient  to  entitle  the  husband  and  wife  to  join  in  an  action  for  the 
rent ;  notwithstanding  the  wife  did  not  acknowledge  the  execution  of  the  lease 
and  therefore  was  not  bound  by  it. 

One  effect  of  uniting  the  wife,  in  such  an  action,  is  that  u^ion  the  death  of  the 
husband  his  interest  in  the  cause  of  action  survives  to  the  wife,  and  no  inter- 
est vests  in  the  personal  representatives  of  the  husband. 

By  uniting  the  wife,  the  husband  signifies  his  assent  to  giving  her  such  an  inter- 
est in  tlie  cause  of  action ;  and  he  thereby  vests  the  wife  with  his  interest,  in 
the  event  of  his  death. 

For  this  reason  the  section  of  the  statute  which  gives  to  the  executors  or  admin- 
istrators of  a  person  to  whom  rent  shall  have  been  due  and  unpaid  at  the  time 
of  his  death,  the  same  remedy,  by  action,  for  the  arrears,  which  the  decedent 
might  have  had  if  living,  is  not  applicable  to  such  a  case. 

Where  land  is  demised  to  A.,  and  he  conveys  the  same  to  B.  by  deed,  without 
any  reservation  or  reference  to  the  lease,  and  B.  conveys  to  C.  and  the  latter  to 
D.  in  like  manner,  D.  acquires  all  the  interest  of  A.,  the  original  lessee,  therein, 
aud  becomes  in  law  an  assignee  of  the  lease ;  and  as  such  he  is  liable  on  the 
covenant  to  pay  rent.  , 

An  assignee  is  liable  on  all  covenants  which  run  with  the  land — as  covenants  to 
repair,  pay  lent,  &c. — although  not  expressly  named  therein. 

And  he  cannot  claim  any  benefit  from  the  omission  of  the  lessor  to  record  the 
lease.  He  is  chargeable  with  notice  of  the  lessor's  rights ;  inasmuch  as  they 
fully  appear  in  the  chain  of  his  own  title. 

APPEAL  fi-om  a  judgment  entered  at  a  special  term,  after  a 
trial  at  the  circuit.  The  action  was  brought  to  recover 
rent  due  on  a  lease  frorn  the  plaintiffs  Darius  Jacques  and  Eliz- 
abeth his  wife,  to  the  defendant's  grantor.  On  the  1st  of  April, 
1839,  Mrs.  Jacques  being  entitled  as  the  widow  of  Levi  Van 
Farren,  a  former  husband,  to  a  life  estate  in  certain  premises 
as  tenant  in  dower,  and  she  and  her  husband,  D.  Jacques,  being 
in  possession  thereof,  they  executed  a  lease  of  the  premises  to 
Elijah  Stephens,  for  and  during  the  natural  life  of  Mrs.  Jacques, 
at  an  annual  rent  of  $100.  This  lease  was  neither  acknowl- 
edged nor  recorded.  The  covenants  in  the  lease  did  not  in 
terras  include  the  ''assigns"  of  either  party.  On  the  25th  of 
June,  1839,  Elijah  Stephens  and  wife  conveyed  the  same  prem- 


270         CASES  IN"  THE  SUPREME  COURT 

Jacques  v.  Short. 

iscs,  without  any  reservation  or  reference  to  the  lease  or  to  tlie 
claims  of  the  plaintiff,  to  Samuel  Wright,  On  the  18th  of  No- 
vember; 1845,  Samuel  Wright  in  like  manner  conveyed  to  Cal- 
vin Ward,  and  Calvin  Ward  on  the  2d  day  of  April,  1849, 
conveyed  in  like  manner  to  the  defendant,  Josiah  Short.  Ste- 
phens, from  the  time  the  lease  was  executed  in  1839,  continued 
to  pay  the  stipulated  rent,  until  the  year  1850.  This  action  was 
brought  upon  the  lease,  by  Jacques  and  Avife  against  Short,  for 
the  recovery  of  the  rent  in  arrear.  Darius  Jacques  died  after 
the  suit  was  commenced. 

The  action  was  tried  at  the  Livingston  circuit,  in  May,  1854, 
l>efore  Justice  Welles,  without  a  jury.  Judgment  was  given  in 
favor  of  the  plaintiflF,  for  $258.84. 

T.  Hastings,  for  the  appellant.  I.  The  defendant  cannot,  in 
this  form  of  action,  or  indeed  in  any  form  of  action,  be  made 
liable  upon  the  lease,  either  as  the  assignee  of  the  term,  or  oth- 
erwise ;  and  the  learned  judge  erred  in  permitting  the  lease  to 
be  read  in  evidence,  as  well  as  in  adopting  the  conclusion  of  law 
that  the  defendant  was  liable.  (1.)  As  the  joint  lease  of  Da- 
rius and  Elizabeth  Jacques,  for  the  term  of  her  natural  life,  it 
has  no  vitality,  for  the  reason  that  she,  being  a  feme  covert, 
could  not  pass  the  estate  without  an  acknowledgment  of  her 
deed.  If,  on  the  other  hand,  the  lease  is  to  be  upheld  as  the 
separate  deed  of  Darius  Jacques,  then  he  had  no  right  to  create 
the  estate  or  term  for  life  of  the  wife.  He  could  only  create  :i 
term  coextensive  with  the  coverture.  If  the  lease  is  to  be  re 
garded  as  valid  to  pass  the  estate  during  coverture,  then  the 
rent  in  arrear  at  the  time  of  his  death  Avould  go  to  his  represent- 
atives ;  and  the  cause  of  action  does  not  survive  to  the  present 
plaintiff.  (2  R.  iS.  32,  §  21.)  All  the  rent  claimed  in  this  ac- 
tion accrued  during  the  coverture,  and  the  present  plaintiff 
could  not  have  maintained  an  action  therefor  even  against  Ste- 
phens ;  much  less  against  a  "stranger  to  the  contract.  (2.'*  The 
covenant  contained  in  this  lease,  on  the  part  of  Stephens,  is 
merely  personal,  and  does  not  run  with  the  land.  It  does  not 
contain  any  words  of  succession    such  as  "  executors,"  "  admin- 


CAYUGA— JUNE,  1855.  271 


Jacques  v.  Short. 


istrators"  or  "assigns."  It  has  been  so  regarded  by  the  parties. 
Stephens  continued  to  pay  the  rent  as  upon  a  personal  covenant 
nearly  eleven  years  after  he  had  parted  with  the  estate.  The 
defendant  is  not  the  lessee  in  fact  or  in  form  ;  and  there  is  no 
privity  of  contract  between  him  and  the  plaintiff.  If  he  is  at 
all  liable,  it  must  be  by  privity  of  estate.  To  constitute  this 
relationship,  the  covenants  in  the  lease  must  run  with  the 
land ;  and  to  make  the  defendant  liable,  he  must  have  entered 
and  possessed  the  estate.  The  covenants  in  the  lease  are  be- 
tween Jacques  and  Stephens,  and  do  pot  extend  to  the  assignees 
of  either  party,  (because  not  named,)  and  no  covenants  can  be 
implied.  (2  Barb.  Ch.  Rep.  559.  14  Wend.  38.)  The  cove- 
nants in  such  a  lease  do  not  run  with  the  land.  (6  Cowen, 
302.  8  id.  266.  4  Comst.  134.)  No  privity  of  estate  can  be 
created  under  such  a  lease,  except  by  contract.  (2  Hill,  444.) 
The  doctrine  of  a  privity  of  estate,  so  as  to  render  the  assignee 
liable,  does  not  extend  to  a  grantee  of  a  grantee,  that  is,  be- 
yond the  immediate  grantee  of  a  lessee ;  and  the  defendant 
being  a  grantee  under  several  other  grantees,  is  not  liable. 

II.  If  the  court  shall  be  of  opinion  that  the  preceding  point 
is  not  well  taken,  then  it  is  insisted  that  the  defendant  is  pro- 
tected by  the  statute  relative  to  the  recording  of  conveyances. 
(2  R.  S.  47.)  The  lease  not  being  recorded,  is  void  as  against 
the  defendant,  (1.)  All  the  rights  of  parties  to  conveyances 
apply  to  this  case,  the  lease  not  being  recorded,  and  not  being 
so  executed  as  to  entitle  it  to  be  recorded.  (2  R.  &'.  40  to  47, 
§  44.)  (2.)  The  doctrines  of  protection  to  a  grantee  with  no- 
tice from  a  grantee  without  notice,  and  vice  versa,  are  fully 
stated  in  Clinton's  Digest,  page  389,  §§  311,  312,  313.  (2  Hill, 
650.  1  Paige,  323.)  (3.)  The  defendant  had  not  sufficient 
notice  in  fact.  Explicit  notice  must  be  shown  ;  notice  to  put 
a  party  on  inquiry  is  not  sufficient.  (1  Clint.  Dig.  p/f.  386, 
389,  §§  307  to  310.  8  Mm.  137.  12  id.  452,  8  Coiven,  260.) 
(4.)  The  estate  under  the  lease  was  forfeited  by  the  non-pay- 
ment of  rent,  and  ceased  running  with  the  land ;  and  no  action 
can  be  maintained  ao^ainst  the  defendant  for  rent  accruinor  after 
forfeiture.     (21  Wendell,  120.)     Waiver  of  the  forfeiture  dis- 


272  CASES  IN  THE  SUPREME  COURT. 

JaciiUC's  V.  Short. 

cliavged  the  defendant.  (5.)  Tlie  defendant  was  only  lialde  for 
the  rent  accruing  while  he  was  assignee.  When  he  parted  with 
the  possession  he  discharged  himself.  (9  Cowen,  88.  3  Barb. 
Ch.  Rep.  52.) 

Charles  C.  Wilson,  for  the  plaintiiF.  I.  The  rulings  of  the 
court  below  upon  the  admission  of  evidence  were  correct.  A 
covenant  extends  to  the  heirs  and  assigns  of  a  part_y,  although 
not  named  in  the  instrument.  Actual  notice  of  the  plaintiffs 
title,  before  purchase  by  the  defendant,  may  be  shown.  The  in- 
terrogatory was  a  proper  one.  But  it  may  be  true  that  he  did 
not  prove  a  sufficient  notice.  {Jackson  v.  Burgotf,  10  John. 
Rep.  457.) 

II.  Proof  of  the  defendant's  possession  of  the  demised  prem 
ises  is  prima  facie  evidence  that  he  is  assignee  of  the  term,  and 
sufficient  in  connection  with  the  lease  to  entitle  the  plaintiff  to 
I'ecover.  There  is  sufficient  evidence  to  warrant  the  court  be- 
low in  finding  that  the  defendant  was  assignee  of  the  lessee. 
{Armstrong  v.  Wheeler,  9  Cowen,  88.  4  Hill,  112.  Daratidc 
V.  Wyman,  2  >S^rt7i^.  .S*.  C.  R.  597.) 

III.  The  conveyances,  from  Peck  down  to  the  defendant,  op- 
erate as  assignments  of  the  lease.  The  lessee  could  not  hold 
adversel}',  having  taken  the  lease ;  and  every  conveyance  must 
in  law  have  been  given  under  and  in  subordination  to  the 
lease.  The  presumptions  from  possession  and  the  deeds  must 
be  considered  together,  and  reconciled,  if  possible.  Stephens 
may  have  agreed  to  pay  the  rent  to  the  plaintiff,  but  the  grant- 
or is,  notwithstanding,  the  assignee  of  the  lessee.  {Childs  v. 
Clark,  3  Barb.  Ch.  52,  59.     4  Cruise,  160,  161.) 

IV.  That  the  plaintiff  had  a  life  estate  in  these  lands,  is  ad- 
mitted. It  also  appears  that  her  interest  Avas  apparent  of 
r(<cord.  (1.)  The  defendant  held  the  estate  of  which  the  plain 
tiff's  first  husband  died  seised,  under  and  through  such  husband. 
(2.)  One  of  his  title  deeds  contains  an  admission  of  the  plain- 
tiff's title  and  estate,  which  estops  the  defendant  from  denying 
notice  of  the  plaintiff's  title.  {Jackson  v.  Parkhur.st,  9  Wend, 
209.     Chautanque  Co.  Bank  v.  Risley,  4  Demo's   Rep.  480. 


CAYUGA— JUNE,  1855.  273 


Jacques  v.  Short. 


1  Clinton's  N.  Y.  Digest,  474.)  (3.)  The  lease  and  the  sub- 
Hiission  to  arbitration  are  confessions  of  the  defendant's  grantors, 
and  operate  to  charge  him  with  notice.  (1  Comstock,  525.) 
(4.)  The  possession  of  the  lessee  and  his  assigns  is  the  pos- 
session of  the  lessors,  the  plaintiflFs,  and  grantees  of  the  estate 
are  bound  to  take  notice  of  the  rights  and  interests  of  the 
person  in  possession.  (5.)  R.  E,.  Jacques  informed  the  defend- 
ant that  his  grantor  was  paying  the  plaintiff  rent  for  this  land. 
(6.)  The  lease  is  one  of  the  muniments  of  the  defendant's  title, 
and  follows  the  estate,  and  the  presumption  is  that  its  counter- 
part is  the  defendant's  possession,  received  from  Stephens, 
through  the  intermediate  grantees.  (7.)  It  was  not  the  grant 
ors'  duty  to  get  the  lease  recorded ;  they  did  not  have  posses- 
sion of  the  lease.  The  grantee  of  the  estate  created  by  the 
lease  Avas  the  person  for  whose  protection  and  by  whom  the 
lease  should  have  been  recorded.  The  object  of  the  registry 
act  is  to  protect  third  persons  from  the  subsequent  fraudulent 
acts  and  conveyances  of  the  grantors,  and  not  to  give  the 
grantee  and  his  assigns  and  privies  in  estate,  notice  of  the 
extent  and  quality  of  their  own  estates,  as  is  claimed  by  the 
defendant  in  the  case  at  bar. 

Bj/  the  Court,  T.  R.  Strong,  J.  It  was  admitted  at  the 
trial,  that  at  the  date  of  the  lease  the  plaintiff  had  title  to  the 
demised  premises  for  her  life.  This  title  was  of  course  sub- 
ject to  the  estate  of  her  husband  in  the  premises  by  virtue  of 
the  marriage,  for  their  joint  lives  ;  and  it  is  settled  that  in  an 
action  "  for  rent  or  other  cause  of  action,  accruinor  durino;  the 
marriage,  on  a  lease  or  demise  or  other  contract  relating  to  the 
land  or  other  real  property  of  the  wife,  whether  such  contract 
Avere  maile  before  or  during  the  coverture,  the  husband  and  Avife 
may  join,  or  he  may  sue  alone."  (1  Chit.  PI.  5th  Am.  ed.  20. 
1  Roper  on  H.  6r  W.  213.  Reeve's  Dom..  Rel.  131  to  133. 
Decker  v.  Livingston,  15  John.  479.)  In  this  case  the  covenant 
to  pay  rent  is  in  terms  to  both,  Avhich  of  itself  is  sufficient  to  en- 
title them  to  join  in  the  action,  although  she  did  not  execute 
the  lease  in  such  a  manner  as  to  be  bound  by  it — the  execution 

Vol,  XX.  35 


274  CASES  IN  THE  SUPREME  COURT. 

Jacques  v.  Short. 

of  it  not  having  been  acknowledged  by  her.  One  effect  of  unit- 
ing the  plaintiffs  in  the  action  was,  that  upon  the  death  of  the 
husband  the  interest  in  the  cause  of  action  survived  to  the  wife, 
and  no  interest  vested  in  the  personal  representatives  of  the  hus- 
band. (1  Chit.  PL  21.  1  Roper  on  H.  c}-  W.  212.)  By  unit- 
ing the  wife,  the  husband  signified  an  assent  to  give  her  such 
an  interest  in  the  cause  of  action.  (1  Roper  on  H.  cj"  W.  213. 
Reeve's  Dam.  Rel.  132.)  The  statute  (1  R.  S.  747,  §  21) 
giving  to  the  executors  or  administrators  of  a  person  to  whom 
rent  shall  have  been  due  and  unpaid  at  the  time  of  his  death,  the 
same  remedy  by  action  for  the  arrears  which  the  testator  or  in- 
testate might  have  had  if  living,  is  not  applicable  ;  for  the  rea- 
son that  the  husband  had  vested  the  plaintiff  with  his  interest, 
in  the  event  of  his  death. 

The  defendant,  by  the  conveyance  to  him  of  the  premises, 
acquired  all  the  interest  of  the  original  lessee  therein  and  be- 
came in  law  an  assignee  of  the  lease.  [Provost  v.  Calder,  2 
Wend.  517.  ArmMrong  v.  Wheeler,  9  Cowen,  88.  Acker  v. 
Witherell,  4  Hill,  112.)  As  such  he  is  liable  on  the  covenant 
to  pay  rent.  An  assignee  is  liable  on  all  covenants  which  run 
with  the  land,  as  covenants  to  repair,  pay  rent,  &c..  although 
not  expressly  named  therein.  ( Verplanck  v.  Wright,  23  Wend. 
506.    Allen  v.  Culver,  3  Denio,  284.    Wood/all's  L.  c5-  T.  278.) 

The  defendant  cannot  claim  any  benefit  from  the  omission  to 
record  the  lease.  He  is  chargeable  with  notice  of  the  plain- 
tiff's rights,  as  they  fully  appear  in  the  chain  of  his  own  title. 

The  views  presented  cover  all  the  points  of  the  appellants, 
and  in  my  opinion  the  judgment  at  special  term  should  be 
affirmed. 

Judgment  aflSrmed. 

[Caycga  General  Term,  June  4,  1855.  Selden,  Johnson  and  T.  R.  Strong. 
.JuBtioes.] 


CAYUGA— JUNE,  1855.  275 


FiERO  VS.  Reynolds. 

The  provision  of  the  statute,  prescribing  the  time  within  wh  oh  a  venire  for  a 
s(»cond  jury,  upon  a  discharge  of  the  first  by  a  justice,  for  their  failure  to  agree, 
shall  be  made  returnable,  (2  JR.  S.  245,  §  111,)  was  designed  for  the  conven- 
ience of  the  parties,  and  a  compliance  with  it  may  be  waived  by  their  consent- 
ing that  the  process  be  returnable  at  a  later  period. 

Where  the  return  of  the  justice,  after  stating  the  discharge  of  the  first  jury,  added 
"  I  then  proposed  to  the  parties  to  postpone  the  cause  until  the  17th  day  of 
May,  1858,  at  &.c.,  to  which  neither  party  made  any  objection.  I  then  issued 
another  venire,"  returnable  at  the  time  and  place  proposed ;  Held  that  it  must 
be  inferred,  upon  the  principle  that  everj'^  reasonable  intendment  is  to  be  made 
in  support  of  a  judgment,  that  the  parties  understood  the  proposition,  and  said 
nothing  indicating  dissent;  that  the  parties  were  in  a  position  inquiring  them  to 
express  their  dissent,  or  be  concluded ;  and  that  the  omission  to  object  was 
equivalent  to  an  express  consent  to  the  postponement. 

In  such  a  case  a  consent,  in  express  terms,  is  not  necessary. 

APPEx\L  from  a  judgment  of  the  Cayuga  county  court.  The 
action  was  commenced  before  a  justice  of  the  peace,  by 
summons  returnable  May  7,  1853,  and  was  tried  on  the  14th  of 
May.  before  a  jur}'- ;  a  venire  being  called  for  by  the  defendant. 
The  jury  did  not  agree,  and  were  discharged  by  the  justice,  on 
the  same  day,  Saturday.  The  justice  stated  in  his  return,  that 
he  then  "  proposed  to  the  parties  to  postpone  the  cause  until 
the  17th  day  of  May,  (Tuesday.)  to  which  neither  party  made 
any  objection."  There  was  no  other  consent  to  this  arrange- 
ment than  such  as  is  to  be  implied  from  the  silence  of  the  parties. 
On  the  adjourned  day  the  plaintiiF  appeared,  with  his  witnesses, 
and  took  judgment.  The  defendant  did  not  appear,  but  ap- 
pealed to  the  county  court,  and  there  alleged  for  error  the  viola- 
tion of  the  section  of  the  statute  which  provides  that  when  a 
jury  cannot  agree,  and  are  discharged,  the  justice  "  shall  issue 
a  new  venire,  returnable  vi'ith'in  foriy-eig-ht  hours,  unless  the 
parties  shall  have  consented  that  the  justice  may  render  judg- 
ment on  the  evidence  already  before  him  ;  which  in  such  cases 
he  may  do."     (2  R.  S.  245,  §  111.)' 

The  county  court  reversed  the  judgment  of  the  justice,  and 
the  plaintiff  appealed  to  this  court. 


276  CASES  IN  THE  SUPREME  COURt 


Fiero  v.  Reynolds. 


Wm.  Allen,  for  the  appellant. 
Jas,  R.  Co.T,  for  the  respondent. 

B7/  the  Court,  T.  R.  Strong,  J.  If  the  justice  erred,  in 
making  the  second  venire  returnable  more  than  forty-eight 
hours  after  discharging  the  first  jury,  it  did  not  affect  his  juris- 
diction ;  the  case  was  one  of  mere  error  or  irregularity  in  the 
exercise  of  jurisdiction.  But  his  judgment  was  subject  to  re- 
versal for  the  error,  as  much  so  as  if  he  had  acted  without  juris- 
diction.    {Hard  v.  Shipman,  6  Barb.  621.) 

The  provision  of  the  statute,  prescribing  the  time  within 
which  a  venire  for  a  second  jury  upon  a  discharge  by  a  justice 
of  the  first  for  their  failure  to  agree,  shall  be  made  returnable, 
(2  R.  S.  245,  §  111,)  was  designed  for  the  convenience  of  the 
parties,  and  compliance  with  it  may  be  waived  by  their  consent- 
ing that  the  process  be  returnable  at  a  later  period.  {Embury 
V.  Conner,  3  Comst.  Rep.  511,  and  cases  there  cited.)  It  is 
claimed  on  the  part  of  the  appellant,  that  such  consent  was 
given  in  this  case,  and  that  presents  the  principal  question  for 
decision. 

The  return  of  the  justice,  after  the  statement  of  the  discharge 
of  the  first  jury,  proceeds,  "  I  then  proposed  to  the  parties  to 
postpone  the  cause,"  to  the  time  to  which  it  was  postponed,  "  to 
which  neither  party  made  any  objection."  The  proposition  was 
to  tlie  parties,  from  which  it  must  be  understood  that  it  was 
heard  by  them.  It  is  not  stated  what  language  was  used  in 
making  the  proposition,  or  whether  or  not  any  thing  was  said 
by  the  parties,  or  either  of  them,  in  answer  to  Avhat  was  said  by 
the  justice.  If  the  respondent  had  regarded  it  as  important,  he 
might  doubtless,  by  proper  proceedings  in  the  county  court, 
have  procured  an  amendment  of  the  return,  in  those  particulars, 
but  in  the  absence  of  more  precise  information,  it  must  be  in- 
ferred, upon  the  principle  that  every  reasonable  intendment  will 
be  made  in  support  of  a  judgment,  that  thf   parties  understood 


CAYUGA— JUNE,  1855.  277 


Fiero  v.  Reynolds. 


it,  and  that  neither  said  any  thing  indicating  dissent.  The  re- 
turn next  states,  "  I  then  issued  another  venire,"  returnable  at 
the  time  and  place  proposed,  and  it  is  a  reasonable  inference 
that  this  was  done  in  the  presence  of  the  parties.  It  thus  ap- 
pears that  there  was  not  only  the  proposition  by  the  justice,  but 
that  it  was  aCted  upon  at  the  time,  with  the  full  knowledge  of 
the  parties  ;  and  the  statement  that  no  objection  was  made  ap- 
plies to  the  whole  period.  Was  not  this  omission  to  object 
equivalent  to  an  express  consent  to  the  postponement?  Were 
not  the  parties  in  a  position  that  required  them  to  express  their 
dissent  or  be  concluded?  Could  the  justice  fail  to  understand 
the  parties  as  consenting?  The  proper  answers  to  these  ques 
tions  appear  to  me  to  be  plain.  I  am  satisfied  that  both  parties 
intended  to,  and  did  in  fact,  at  the  time,  consent  to  the  post- 
ponement. (  Whitney  v.  Crim,  1  Hill,  61.  Kilmore  v.  Sii- 
da?n,  7  Joh7i.  530.  Bullard  v.  Spoor,  2  Cowen,  430.  Acker- 
rnan  v.  Finch,  15  Wend.  652.) 

It  was  pr-oper  for  the  justice  to  return  the  particulars  of  what 
took  place  before  him  in  relation  to  the  postponement.  It  is 
sufficient  to  sustain  his  judgment  if  it  is  apparent  from  the 
return  that  the  consent  of  the  parties  was  given  ;  and  the  conxt 
will  draw  the  conclusion  as  to  the  general  fact  from  the  partic- 
ular facts  returned. 

The  principle  of  the  case  of  Taylor  v.  Betsford,  (13  John. 
487,)  is  not  applicable  to  this  case.  It  is,  that  the  consent  of 
parties  to  a  justice  entering  the  room  where  the  jury  are  delib- 
erating, privately  and  apart  from  the  parties,  to  answer  ques- 
tions at  the  request  of  the  jury,  will  not  be  inferred  from  the 
knowledge  of  the  parties  that  he  was  going  into  the  room,  and 
their  not  making  objection  ;  inasmuch  as  the  practice  is  danger- 
ous and  improper,  and  ought  to  be  guarded  against.  Here  there 
is  no  dangerous  or  improper  practice  against  which  it  is  impor- 
tant to  provide.  The  case  referred  to,  as  has  been  said  by  the 
court  in  subsequent  cases,  is  an  extreme  one,  and  the  principle 
ought  not  to  be  extended.  (  Whitney  v.  Crim,  above  cited. 
Moody  V.  Pomeroy,  4  Denio.  115.)     In  cases  like  the  present.  I 


278  Cx\SES  IN  THE  SUPREME  COURT. 

Clark  V.  Van  Vrancken. 

am  of  opinion  that  a  consent  in  express  terms  is  not  necessary. 
The  judgment  of  the  county  court  must  be  reversed,  and  that 
of  the  justice  affirmed. 

[Cayuga  General  Term,  June  4,  1855.     Selden,  Johnson  and  T.  R.  Strong, 
Justices.! 


Clark  vs.  Van  Vrancken. 

The  general  doctrine  that  Avhere  a  party  does  not  appear  he  waives  nothing,  is 
well  settled;  but  this  means,  nothing  impeaching  the  jurisdiction  or  authority 
of  the  court  to  act,  and  nothing  in  the  way  of  objection  to  the  proceedings 
and  the  competency  or  sufficiency  of  evidence  on  the  part  of  the  plaintiff.  This 
is  the  extent  to  wiiich  the  rule  has  been  or  can  properly  be  carried. 

With  the  exception  of  objections  to  the  jurisdiction,  and  those  which  arise  upon 
the  proceedings  and  case  of  the  plaintiff,  all  objections  are  waived  by  an 
omission  to  appear  and  make  them,  in  the  proper  form,  before  judgment. 

An  omission  to  challenge  is  a  waiver  of  all  objection  to  a  juror,  in  like  manner 
as  an  omission  to  plead  a  defense  is  a  waiver  of  the  defense.  And  this, 
whether  there  be  an  appearance  or  not. 

Accordingly,  where  in  an  action  before  a  justice  of  the  peace,  an  adjourment 
took  place,  after  issue  joined,  and  the  defendant,  although  present,  did  not 

■  appear,  on  the  trial  ;  it  was  held  that  he  could  not,  on  appeal  from  the  judg- 
ment, rai.se  the  objection  that  some  of  the  jurors  who  sat  upon  the  trial  were 
not  competent,  as  such,  for  want  of  the  requisite  property  qualification. 


A 


f^  PPEAL  by  the  defendant  from  a  judgment  of  the  Living- 
ston county  court.  The  action  was  commenced  before  a 
justice  of  the  peace,  and,  after  issue  joined,  was  tried  by  a 
jury,  who  found  a  verdict  in  favor  of  the  plaintiff  for  $100. 
From  the  judgment  rendered  thereon,  the  defendant  appealed 
to  the  county  court,  where  the  judgment  of  the  justice  was 
reversed.  The  defendant  did  not  appear,  on  the  trial  before 
the  justice,  or  make  any  objection  to  the  jurors,  or  either  of 
them,  but  in  the  county  court  he  assigned  for  error  in  fact  that 
William  Woolever,  Isaac  Preston  and  Merrick  C.  Townsend, 
and  each  of  them,  were  not  competent  jurors,  by  reason  of  not 
having  the  property  qualifications  required  b}'  the  statute. 


CAYUGA— JUNE,  1855.  279 


Clark  V.  Van  Vranckeu. 


R.  L.  Dorr,  for  the  appellant. 

J.  A.  Van  Derlip,  for  the  respondent. 


/ 


By  the  Court,  T.  R.  Strong,  J.  The  complaint,  in  each  ' 
count,  charges  an  entry  upon  real  estate,  and  in  connection 
..herewith  the  commission  of  other  acts.  In  two  of  the  counts 
the  taking  and  carrying  away  of  personal  property,  and  in  the 
other,  making  a  noise  and  disturbance,  and  using  indecent  lan- 
guage to  the  plaintiff's  family,  whereby  the  plaintiff's  wife  be- 
came sick,  and  he  lost  her  services.  The  cause  of  action,  in  each 
count,  is  the  entry  on  the  premises  ;  all  the  rest  is  matter  of 
aggravation.  {Howe  v.  Willson,  1  Denio,  181.  Houghtaling 
V.  HovghtaUng,  5  Barb.  379,  382.  Eames  v.  Prentice, 
8  CusJiing,  337.)  And  the  proof  given  upon  the  trial  abund- 
antly established  the  several  causes  of  action,  and  most  of  what  , 
is  alleged  in  aggravation. 

The  defendant  cannot  have  any  benefit  from  the  slight  proof 
in  support  of  a  license  in  fact  to  enter  upon  the  premises,  as 
no  justification  of  that  character  is  set  up  in  the  answer. 
{Ilaight  V.  Badgeley  and  wife,  15  Barb.  499.) 

There  was  no  proof  introduced  to  sustain  the  justification, 
or  new  matter  pleaded  by  the  defendant. 

This  disposes  of  the  whole  case,  with  the  exception  of  a 
single  point  presented  by  the  assignment  of  error  in  fact,  viz : 
that  some  of  the  jurors  who  sat  upon  the  trial  were  not  com 
petent,  as  such,  by  reason  of  not  having  the  property  qualifi- 
cation prescribed  by  the  statute.  After  issue  was  joined  an 
adjournment  took  place,  and  the  defendant,  although  present, 
did  not  appear  on  the  trial.  {Fanning  v.  Trowbridge,  5  Hill, 
428.)  It  is  claimed  in  his  behalf,  that  as  he  did  not  appear,  no 
objection  which  he  might  have  taken,  had  he  appeared,  is  waiv- 
ed, and  that  he  may  avail  himself  of  any  such  objection  on 
appeal. 

The  general  doctrine,  that  when  a  party  does  not  appear  he 
waives  nothing,  is  well  settled  ;  but  this  means,  nothing  im- 
peaching the  jurisdiction  or  authority  of  the  court  to  act,  and 


280  CASES  IX  THE  SUPREME  COUPwT. 

Clark  V.  Van  Vranckcn. 

1 

nothing  in  the  way  of  ol-jection  to  the  proceedings  and  the  com- 
petency or  sufficiency  of  evidence  on  the  part  of  the  plaintiff. 
This  is  the  extent  to  -which  the  rule  has  been  or  Can  properly  be 
carried.  In  McNiitt  v.  Johnson,  (7  Jolm.  18.)  the  objection 
was  the  incompetency  of  the  proof,  and  the  court  say,  "The 
defendant  not  being  present  at  the  trial  cannot  be  deemed  to 
have  waived  any  objection  to  the  competency  of  the  proof;  it 
ought  therefore  to  have  been  legal."  In  Northrup  v.  Jackson, 
[IZ  Wend.  85.)  it  was  objected  "  that  the  declaration  was  gen- 
eral when  it  should  have  stated  the  special  contract,  and  also 
that  parol  evidence  was  given  of  the  letter  of  the  defendant 
upon  which  his  liability  rested."  The  court  say,  "  as  the 
defendant  waived  nothing  on  the  trial  he  has  a  right  now  to 
raise  the  objections."  In  Sqiiier  v.  Gonld,  (14  Wend.  159,) 
the  objection  allowed  was,  that  evidence  was  received  which 
was  not  admissible.  In  Tiffany  v.  Gilbert,  (4  Barb.  320,) 
error  in  foct  was  assigned  on  certiorari,  that  the  judgment 
was  rendered  by  a  justice  of  the  peace  not  residing  in  the 
same  town  with  either  of  the  parties,  nor  in  an  adjoining  town, 
cfec.  wherefore  the  justice  had  not  jurisdiction.  The  judg- 
ment was  reversed  in  the  county  court  on  that  ground,  and 
the  decision  was  affirmed  in  this  court.  The  objection  in  the 
case  last  cited  did  not  appear  in  the  plaintiff's  proceedings  or 
evidence,  but  as  it  went  to  the  jurisdiction  of  the  court,  the 
plaintiff  was  allowed  to  make  it  by  assigning  error  in  fact. 
{See  Robin  son  X.  West,  11  Barb.  309.)  In  Post  v.  Black, 
(5  Denio,  QQ,  67.)  the  return  of  the  justice  showed  he  was  re- 
lated to  the  plaintiff,  and  it  was  objected  on  the  return  only, 
without  any  assignment  of  error  in  fact,  that  the  justice  was 
thereby  disqualified  from  acting  as  such,  and  the  court,  after 
remarking  that  the  omission  to  notice  the  objection  at  the  trial 
was  not  a  waiver  of  it,  say,  "  The  question  of  jurisdiction  may 
be  raised  at  an}'  time." 

In  cases  of  defect  of  jurisdiction,  the  proceedings  are  gen- 
erally a  nullity,  and  may  be  attacked  for  that  cause  collaterally; 
and  there  is  therefore  much  propriety  in  permitting  a  party 
who  did  not  appear  in  the  court  below,  to  have   the   benefit  in 


CAYUGA— JUNE,  1S55.  281 


Clark  V.  Van  Vrancken. 


error  of  such  a  defect  by  assigning  error  in  fact ;  but  with 
the  exception  of  objections  of  that  character,  and  those  which 
arise  upon  the  proceedings  and  case  of  the  plaintiff,  I  think  all 
objections  are  waived  by  an  omission  to  appear  and  make  them 
in  the  proper  form,  before  judgment.  The  right  to  answer, 
and  hence  of  necessity  the  right  to  make  a  defense  which  must 
be  set  up  by  answer  in  order  to  be  available,  is  waived  by  not 
appearing  in. the  court  below.  Payment,  release,  set-off,  accord 
and  satisfaction,  and  all  affirmative  defenses,  or  defenses  aris- 
ing out  of  new  matter  to  be  brought  forward  by  the  de- 
fendant, which  existed  before  judgment,  are  thus  waived.  No 
one  would  think  of  making  such  matters  the  subject  of  an 
assignment  of  error  in  fact.  The  same  principle  which  ex- 
cludes this,  applies,  in  my  judgment,  with  the  exceptions 
already  stated,  to  all  objections  in  the  nature  of  a  pleading 
founded  upon  new  matter.  And  to  this  class  belongs  a  chal- 
lenge to  a  juror  for  a  want  of  the  requisite  property  qualification, 
or  for  any  thing  else  farming  a  principal  cause  of  challenge. 
Such  a  challenge  is  in  the  nature  of  a  pleading,  although  not 
strictly  a  pleading  as  regulated  by  the  code  ;  it  must  be  answered 
by  a  denial  or  a  demurrer,  and  an  issue  thus  be  formed  upon  it, 
which  must  be  formally  tried  ;  the  issue  makes  a  part  of  the 
record,  and  the  proceedings  and  decision  upon  it  may  be  re- 
viewed on  appeal.  {E.v  parte  Vermilt/ea,  6  Coiven,  555. 
The  People  v.  Vermilyea,  7  Cowen,  108.  The  People  v. 
Mather,  4  Wend.  229.)  A  challenge  to  a  juror  does  not  go 
to  the  jurisdiction  of  the  tribunal ;  though  a  juror  be  incom- 
petent as  such  the  trial  is  not  invalidated  ;  and  the  only  mode 
by  which  the  incompetency  can  be  alleged  and  the  facts  consti- 
tuting it  introduced  is  by  a  challenge  which  must  be  supported 
by  proof,  if  the  facts  are  disputed.  Where  there  is  no  chal- 
lenge there  is  no  issue  and  no  basis  for  the  proof.  And  the 
challenge  must  be  made  before  the  trial,  otherwise  the  right  to 
make  it  is  Avaived. 

On  the  whole,  I  am  satisfied,  that  an  omission  to  challenge 
is  a  waiver  of  all  objection  to  a  juror,  in  like  manner  as  an 

Vol.  XX.  36 


282  CASES  IN  THE  SUPREME  COURT. 

Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Company. 

omission  to  plead  a  defence  is  a  waiver  of  the  defense.     Wlieth 
er  there  be  an  appearance  or  not  makes  no  difference. 

The  judgment  of  the  county  court  must  be  reversed,  and 
that  of  the  justice  affirmed. 

[Cayuga  General  Term,  June  4,  1855.     Seidell,  T.  R.  Strong  &x\A.  Johnson , 
Justices.] 


Curtiss  vs.  The  Rochester  and   Syracuse  Rail  Road 

Company. 

In  an  action  against  a  rail  road  company,  to  recover  damages  for  an  injury  sus 
tained  by  a  passenger  by  means  of  a  collision,  it  is  not  erroneous  for  the  court  to 
charge  the  jury  that,  in  ascertaining  the  amount  of  the  plaintiff's  damages,  it  is 
profwr  for  them  to  consider  the  bodily  pain  and  suffering  which  has  occuired,  or 
is  likely  to  occur,  in  consequence  of  the  injurj',  but  that  they  cannot  act  upon 
conjecture  as  to  the  prospective  condition  or  situation  of  the  plaintiff;  and  that 
the  jury  can  only  consider,  in  respect  to  the  future,  what  the  evidence  renders 
reasonably  certain  will  necessarily  and  inevitably  result  from  the  original  injury. 

Bodily  pain  and  suffering  which  is  necessarily  and  directly  to  flow  from  the  injury, 
is  as  much  a  part  o.f  the  injury  as  the  continuance  of  a  physical  disability 
occasioned  by  it. 

Only  one  action  can  be  maintained  to  recover  damages  for  a  personal  injury.  Yet 
it  is  not  necessary  for  the  injured  person  to  wait  until  all  the  consequences  of 
the  injury  have  become  ftilly  developed.  He  is  entitled  to  sue  whenever  he 
thinks  proj)er,  and  to  recover  damages  for  both  past  and  future  pain  of  body, 
as  well  as  for  past  and  future  deprivation  of  health,  or  of  any  of  his  bodily 
poweis. 

But  in  respect  to  all  the  subjects  of  damage,  it  is  requisite  that  they  should  bo 
the  legal,  direct  and  necessary  results  of  the  injury,  and  that  those  Vvhich,  at 
the  time  of  the  trial,  are  prospective,  should  not  be  conjectural. 

Damages  arising  from  bodily  pain  and  suffering  need  not  be  alleged  specially  in 
the  complaint. 

Where  it  appeared,  from  the  evidence,  that  the  cars  were  thrown  off  the  track  of 
a  rail  road,  and  a  collision  thereby  occasioned,  because  the  rails  were  not  right 
or  from  some  defect  in  the  mode  of  securing  them  in  their  place ;  Held  that 
the  degree  of  care  which  the  law  imposed  on  the  rail  road  company  required 
tnem  to  see  that  the  rails  were  in  a  right  position,  and  not  to  trust  exclusively 
to  the  lever  of  the  switch,  when  the  rails  were  in  open  view  while  moving  it ; 
and  also  to  see  that  the  rails  were  firmly  secured ;  and  that  if  they  omitted  tc 
do  so  they  were  guilty  of  negligence. 


CAYCGA  -JtJNE,  1855.  283 


Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Company. 

It  was  tlieretbre  held,  further,  that  the  question  of  neghgence  was  pvoi)crly  sub- 
mitted to  tlie  jury. 

Also  held,  that  proof,  uncontradicted,  that  the  switch  was  rightly  placed,  did  not 
rebut  all  presumption  of  negligence. 

Where,  in  an  action  against  a  rail  road  company  to  recover  damages  for  a  i^er- 
sonal  injury  occasioned  by  a  collision,  there  was  evidence  showing  that  tho 
plaintiff  had  been  incapacitated  by  the  injury  from  labor  most  of  the  time  for 
nearly  two  years,  and  there  was  also  testimony  tending  to  prove  "that  the  disa- 
bility would  be  permanent,  or  at  least  long  continued ;  Held,  that  a  verdict  of 
S4,500  was  not  so  excessive  as  to  indicate  partiality,  prejudice,  passion,  or  any 
thing  improper,  in  the  jury. 

ri"^HIS  was  an  action  to  recover  damages  for  an  injury  re- 
X  ceived  by  tlie  plaintiflf  while  a  passenger  in  the  car  of  the 
defendants,  in  consequence  of  the  defendants'  negligence.  The 
complaint  alleged  that  the  defendants  were  common  carriers, 
for  hire  and  reward,  of  persons  and  their  baggage,  between 
Syracuse  and  Rochester.  That  on  the  7th  day  of  August, 
1852,  the  plaintiff  became  a  passenger  in  the  defendants'  car  at 
Geneva,  to  be  carried  safely  to  Auburn  ;  and  that  while  on  the 
way  the  defendants  so  carelessly  and  negligently  conducted 
themselves,  their  railroad,  and  the  cars  in  which  the  plaintiff 
was  sittinji,  that  the  engine  and  cars  ran  off  the  track  at  Wa- 
terloo,  and  produced  a  collision  between  the  different  cars  of  the 
same  train  ;  and  that  by  reason  of  that  collision  and  the  neg- 
ligence of  the  defendants,  she  received  an  injury  on  one  of  her 
legs.  The  complaint  also  set  forth  and  claimed  special  damages — 
in  all,  $12,000.  The  answer  was  a  denial  of  each  and  every 
allegation  of  the  complaint,  except  that  which  alleged  that  the 
defendants  were  a  body  corporate,  and  that  they  owned  the  said 
rail  road  and  used  it  for  the  conveyance  of  passengers  from 
Syracuse  to  Rochester.  The  action  was  tried  at  the  Cayuga 
circuit,  in  May,  1854,  before  Justice  Johnson.  The  plaintiff 
proved  the  facts  set  forth  in  the  complaint,  and  introduced  med- 
ical and  other  testimony  to  show  the  nature  and  extent  of  the 
injury  sustained  by  her.  The  collision  occurred  at  Waterloo, 
where  there  were  three  tracks — a  middle  one,  and  one  on  each 
side,  and  while  the  train  in  which  the  plaintiff  was  a  passenger 
was  running  at  the  usual  speed,  upon  the   middle   track.     The 


284  CASES  IN  THE  SUPREME  COURT. 

Curtiss  V.  Rochester  and  Syracuse  Raif  Road  Company. 

train  ran  off  on  to  a  side  track,  and  thence  into  the  ditch. 
The  court  charged  the  jury  that  the  fact  of  this  accident 
occurring,  Avas  of  itself  presumptive  evidence  of  negligence  on 
the  part  of  the  defendants,  and  it  lay  with  them  to  explain 
and  to  prove  that  they  were  not  negligent,  in  order  to  discharge 
them  from  liability  for  the  injury  occurring  to  the  plaintiff; 
that  it  Vt'as  a  question  of  fact  for  the  jury  to  determine  from  all 
the  circumstances  and  evidence  of  the  case,  whether  the  switch 
was  rightly  placed,  and  whether  the  injury  arose  from  any  neg- 
ligence on  the  part  of  the  defendants ;  that  if  the  injury  was 
the  result  of  pure  accident  only,  and  without  any  neglect  of 
the  defendants,  the  plaintiff  could  not  recover  ;  and  that  it  was 
a  question  of  fact,  for  the  jury  to  determine  from  the  evidence, 
whether  the  injury  arose  from  any  neglect  of  the  defendants  ; 
and  if  so,  then  the  defendants  were  liable.  To  which  charge 
the  defendants  excepted.  The  court  further  charged  the  jury 
that  this  was  not  a  case  for  exemplary  damages  ;  but  that  it 
Avas  for  the  jury  to  determine,  from  the  evidence,  the  amount  of 
damages  which  the  plaintiff  had  sustained  or  was  likely  to  sus- 
tain in  consequence  of  the  neglect  of  the  defendants ;  and 
that  in  ascertaining  such  damages,  they  would  be  justified  in 
taking  into  consideration,  and  it  would  be  proper  for  them  so  to 
consider,  the  bodily  pain  and  suffering  which  the  plaintiff  suf- 
fered or  was  likely  to  suffer  in  consequence  of  the  neglect  of 
the  defendants ;  and  also,  for  the  loss  of  her  time  and  the 
physicians'  bills  and  such  expenses  and  injuries  as  the  plaintiff 
had  sustained  in  consequence  of  the  neglect  of  the  defendants, 
and  to  award  to  the  plaintiff  such  damages  therefor  as  in  their 
judgment  would  be  proper.  To  which  charge,  so  far  as  it  re- 
lated to  bodily  pain  and  suffering,  the  defendants  excepted. 
The  defendants  requested  the  court  to  lay  down  some  more  defi- 
nite rule  to  the  jury  for  estimating  damages  in  cases  of  injuries 
of  this  kind.  But  the  court  declined  so  to  do  ;  and  the  defend- 
ants excepted  to  such  refusal.  But  the  court  did'  charge  that 
future  or  prospective  damages  could  not  be  awarded  by  the  jury 
upon  conjecture  as  to  the  probable  condition  or  situation  of  the 
plaintiff,  resulting  from  the  injury ;  and  that  future   damages 


CAYUG  ATTUNE,  1855.  285 


Cuitiss  V.  Rochester  and  SjTacuse  Rail  Road  Company. 

could  only  be  awarded  when  it  is  rendered  reasonably  certain 
from  the  evidence,  that  such  damages  will  inevitably  and  neces- 
sarily result  from  the  original  injury.  The  court  further 
sharged,  that  the  presumption  of  negligence  may  always  be 
repelled  by  proof  that  due  and  proper  care  had  been  taken  by 
the  defendants,  and  if  the  jury  were  satisfied  that  the  accident 
occurred  in  consequence  of  some  secret  defect  in  the  materials, 
which  could  not  be  discovered  by  human  foresight,  then  the  in- 
jury was  the  result  of  a  mishap  for  which  the  defendants  were  not 
to  blame  and  could  not  be  legally  amerced  in  damages,  and  the 
verdict  must  be  for  the  defendants.  The  counsel  for  the  de- 
fendants then  asked  the  court  to  charge  the  jury  that  they  could 
not  take  into  consideration,  in  estimating  the  plaintiff^s  damages, 
the  bodily  and  mental  pain  and  suffering  which  the  plaintiflF  un- 
derwent, resulting  from  the  injury  ;  and  that  the  only  compen- 
sation which  the  jury  could  aAvard  to  the  plaintiff  was  for  the 
pecuniary  loss  which  she  had  sustained ;  which  request  the  court 
declined,  and  the  defendants  excepted.  The  defendants  then  re- 
quested the  court  to  charge  that  the  proof,  uncontradicted,  in  this 
nase  showed  that  the  switch  was  rightly  placed  for  the  train  in 
which  the  plaintiff  was  a  passenger,  and  awaiting  its  approach  ; 
and  that  this  rebutted  any  presumption  of  negligence  arising 
from  the  accident;  and  that  the  plaintiff  could  not  recover  without 
proof  of  actual  negligence.  The  court  declined  thus  to  charge, 
and  the  defendants  excepted.  The  jury  found  a  verdict  for 
the  plaintiff  for  $4,500,  and  the  plaintiffs,  upon  a  case,  moved 
for  a  new  trial. 

Geo.  Rathhun,  for  the  plaintiff.  There  is  in  this  case  no  ob- 
jection or  exception  for  the  admission  or  rejection  of  evidence. 
The  only  points  taken  or  raised  on  the  part  of  the  defendants, 
are  on  the  charge  of  the  court  to  the  jury.  I.  The  charge  of  the 
court,  at  fol.  87  and  88,  is  correct,  to  wit :  "  The  fact  ot  this 
accident  occurring,  was  of  itself  presumptive  evidence  of  neg- 
ligence on  the  part  of  the  defendants,  and  it  lay  with  them  to 
explain  it,  and  to  prove  that  they  were  not  negligent,  in  order 
to  discharge  them  from  liability  for  the  injury  occurring  to  the 


2S6  CASES  IX  THE  SUPREME  COURT. 

Cartiss  v.  Rochester  and  Syracuse  Rail  Road  Company. 

plaintiff,"  The  counsel  for  the  defendants  will  hardly  attempt 
a  denial  of  the  first  proposition  in  this  part  of  the  charge.  The 
legal  presumption  is  too  well  established.  This  being  conceded, 
as  it  must  be,  the  second  is  an  unavoidable  and  necessary  con- 
sefpence.  It  is  a  conclusion  of  law,  arising  from  a  legal  pre- 
sumption. Pr^^sumptive  evidence  of  negligence  is  prima  facie 
evidence,  which,  unexplained  or  uncontradicted,  entitles  the 
plaintiff  to  a  recovery.  Hence,  to  avoid  the  force  of  this  pre- 
sumption, the  defendant  must  disprove  or  explain  it. 

II.  This  part  of  the  charge  contains  two  distinct  propositions  ; 
one  is  undoubtedly  correct ;  if  the  other  be,  in  fact,  incorrect, 
the  defendants  cannot  take  advantage  of  it,  because  their  excep- 
tion is  to  the  two  propositions  combined.  It  is  too  broad.  An 
exception  or  objection  must  be  specific.  It  must  be  limited  to 
matter  claimed  to  be  erroneous,  and  must  be,  in  fact,  erroneous, 
not  in  part,  but  entire.  A  general  objection  to  a  charge,  or  part' 
of  a  charge,  must  stand  or  fall  upon  the  question,  Is  the  part  so 
objected  to,  in  the  whole  erroneous  ? 

III.  The  rule  laid  down  by  the  court  to  guide  the  jury  in  the 
ascertainment  of  the  plaintiff's  damages  is  not  erroneous.  This 
part  of  the  charge  contains  several  propositions,  various  in  char- 
acter, and  presenting  the  various  items,  proper  to  be  taken  into 
consideration  by  the  jury  in  determining  the  amount  of  damages. 
It  cannot  be  denied  that  most  of  these  items  are  correct.  It 
may  now  be  contended  that  the  bodily  pain  and  suffering  "  which 
the  plaintiff  was  likely  to  suffer  in  consequence  of  the  neglect  of 
the  defendants,"  as  stated  in  the  part  of  the  charge  excepted  to, 
was  erroneous.  This  Ave  deny.  But  we  claim  that  the  defend- 
ants are  not  at  liberty  to  raise  that  question.  No  such  point  is 
made  in  the  case.  If  the  counsel  had  placed  his  exception  on 
this  precise  ground,  it  is  possible  the  court  might  have  modified 
its  charge  in  this  respect.  At  all  events,  the  attention  of  the 
court  would  have  been  called  directly  to  the  question,  and  a  de- 
cision made,  Avith  the  knoAvledge  that  the  counsel  regarded  it  ad 
erroneous.  The  exception  taken,  points  equally  to  any  and  all 
other  portions  of  the  charge  to  which  exception  is  taken,  This 
exception  is  too  broad.     Nothing  was  said  about  the  damagea 


OAYCGA— June;  isss.  287 


Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Company. 


alleged  in  the  complaint ;  no  exception  was  placed  on  any  such 
ground.     It  is  too  late  to  do  so  in  this  court. 

IV.  The  damages  found  by  the  verdict  of  the  jury  are  not 
excessive. 

V.  The  court  was  correct  in  declining  to  charge  as  requested 
by  the  defendants'  counsel. 

Geo.  Underwood,  for  the  defendants.  I.  The  learned  judge 
erred  .in  charging  the  jury,  "  that  in  ascertaining  the  plaintiflf's 
damages  they  would  be  justified  in  taking  into  consideration,  ana 
it  would  be  proper  for  them  so  to  consider,  the  bodily  pain  and  suf- 
fering which  the  plaintiff  suffered,  or  was  likely  to  suffer,  in  con- 
sequence of  the  neglect  of  the  defendants."  We  are  aware  that 
this  court  in  the  case  of  Morse  v.  The  Aub.  and  Syr.  R.  R.  Co., 
(10  Barb.  621,)  have  held  that  a  jury  could  give  damages  for 
pain  and  suffering  in  an  action  of  this  kind.  Without  question- 
ing here  the  correctness  of  that  decision,  we  place  our  objections 
to  the  charge  of  the  court  in  this  case  upon  strictly  legal  prin- 
ciples. (1.)  The  charge  permits  and  invites  the  jury  to  conjfec- 
ture  or  attempt  an  estimate  of  the  extent,  duration  and  intensity 
oi future  pain  and  suffering.  This  goes  much  farther  than  the 
case  cited.  Such  damages  would  be  analogous  to  the  allowance 
of  unearned  and  contingent  profits',  which  is  never  permitte(? 
{Blanchard  v.  Ely,  21  Wend.  342.  Giles  v.  O'  Toole,  4  Barb. 
261).  The  same  rule  prevails  in  actions  of  tort  as  on  contract. 
(21  Wend.  350.  3  Wheat.  546.  1  How.  28.)  (2.)  It  allowed 
the  jury  to  go  out  of  the  evidence.  There  was  no  proof  of  any 
future  pain,  or  that  there  would  be  any.  The  age  of  the  plain- 
tiff was  not  shown,  so  that  the  jury  might  have  even  that  for  a 
starting  point  in  their  conjectures  of  the  probable  duration  of 
her  life,  and  consequent  duration  of  suffering.  (3.)  There  was 
no  claim  for  any  such  special  damage  in  the  complaint,  and  al- 
lowance for  damages  therefor  would  be  giving  more  than  she 
claimed.  The  complaint  only  claims  that  she  suffered  pain  from 
the  time  of  the  injury  to  the  commencement  of  the  action.  It  is 
ailent  in  respect  to  future  pain  and  suffering.  The  plaintiff  cannot 
recover  any  other  special  damages  than  those  alleged.     (3  Am. 


2«8        CASES  IN  TUE  SUPREME  CODKT. 

Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Corrpany. 

Jvrist,  294.  3  Bing.  N.  C.  371.  4  Blac/cf.  277,  8.  2  PhiC 
Ev.  248.  4  Barn,  t^*  ^c/o/.  514.)  The  law  presumes  that  the 
plaintiff  knows  what  her  damages  are,  and  that  she  will  not  fail 
to  allege  enough.  "  And  therefore,  for  the  jury  to  give  more 
damages  than  the  plaintiff  declares  for,  would  be  unreasonable." 
{Lilly's  Prac.  Rep.  2d  ed.  1.  1  Archb.  N.  P.  414.)  If  dam- 
ages for  future  loss  be  claimed,  the  complaint  should  have  count- 
ed upon  and  averred  the  same,  as  was  done  in  the  ca?e  of  Colletl 
V.  The  London  and  Northwestern  Raihoay  Co.,  (6  Eng.  Ijciw 
and.  Eq.  Rep.  307.)  And  the  jury  having  been  thus  instructed' 
upon  a  question  of  this  kind,  where  their  sympathies  would  natu- 
rally and  generously  run  in  favor  of  the  plaintiff  against  a  rail  road 
corporation,  it  is  impossible  to  say  what  proportion  of  the  ver- 
dict was  occasioned  by  their  calculations  upon  this  point. 
{Graham  on  New  Tr.  260  to  265.)  (4.)  Such  damages  must 
1)8,  in  the  nature  of  man's  existence  and  constitution,  wholly 
and  absolutely  contingent  and  conjectural  ;  dependent  upon  life, 
health,  disease,  conditions,  circumstances  and  providences,  which 
we  humbly  insist  are  not  within  the  province  of  a  jury,  sworn 
to  give  a  true  verdict,  according  to  the  evidence  upon  the  issues, 
and  no  other,  joined  between  the  parties.  (5.)  The  complaint 
does  not  aver  any  pain  or  suffering  in  consequence  of  the  de- 
fendants' neglect. 

II.  The  learned  judge  also  erred  in  declining  to  charge  the 
jury,  as  requested  by  the  counsel  of  the  defendants,  that  the 
proof  showed  that  the  switch  Avas  rightly  placed  ;  that  this  re- 
butted any  presumption  of  negligence  ;  and  that  the  plaintiff 
could  not  recover  without  proof  of  actual  negligence.  And  the 
court  also  erred  in  charging  the  jury  as  it  did,  that  it  was  a 
question  of  fact,  for  the  jury  to  determine,  from  the  evidence, 
whether  the  injury  arose  from  any  neglect  of  the  defendants  ; 
and  if  so,  then  the  defendants  were  liable.  The  evidence,  un- 
contradicted, shows  that  the  switch  Avas  rightly  placed.  The 
lever  and  target  were  rightly  placed  for  the  express  train,  and 
the  evidence  shows  that  it  had  always  theretofore  worked  well, 
and  did,  that  morning.  Only  a  few  minutes  before  the  accident 
the  freight  train  was,  at  this  place,  switched  off  for  the  purpose 


CAYUGA— JUNE,  1855.  2S9 


Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Company. 

of  allowing  this  express  train  to  pass  down.  The  switch  was 
changed  for  this  purpose,  and,  after  the  freight  train  had  pass- 
ed off  the  main  track  to  the  side  track,  it  was  immediately 
changed  or  put  back  to  the  main  track  in  order  to  pass  this 
express  train  then  expected.  This  shows  that  the  defendants 
used  due  and  propter  care  at  that  point.  It  is  true,  Halligan 
says  he  did  not  look  to  see  whether  the  rails  moved  when  he 
put  back  the  lever  and  target  in  an  upright  position,  which  would> 
if  the  rails  had  moved,  have  been  correct  for  the  main  track 
and  for  this  express  train,  nor  did  Connolly  see  the  track  itself 
after  the  lever  and  target  were  put  back  in  an  upright  position. 
Halligan  had,  while  then  standing  there,  just  moved  the  lever 
and  target  from  an  upright  position  (on  the  main  track)  to 
allow  the  freight  train  to  pass  off,  which  it  did  by  reason  of  his 
moving  the  lever,  and  then  as  soon  as  the  train  passed  on  to  the 
side  track,  immediately  changed  back  the  lever  and  target  to 
an  upright  position,  and  locked  it  up,  which  made  it  correct  for 
the  main  track  and  the  express  train.  Connolly  saw  all  this  done 
by  Halligan.  Having  done  that,  which  had  been  uniformly  and 
usually  done  to  allow  similar  trains  of  cars  to  pass  that  point 
in  safety,  (for  the  train  was  going  at  its  usual  speed,)  it  is 
humbly  submitted  that  "  due  and  proper  care"  was  exercised 
by  the  defendants.  They  had  done  all  that  very  careful  men 
do  in  such  cases.  They  trusted  to  the  law  of  mechanics.  The 
lever  was  constructed  upon  mechanical  principles,  and  had  been 
\iniformly  obedient  to  the  law  of  those  principles.  It  had 
theretofore  performed  its  office.  Human  care  and  foresight 
cannot  change  the  action  of  those  principles.  The  law  which 
controls  the  action  of  a  lever  is  uniform  and  not  subject  to  any 
exceptions.  If  the  defendants  had  neglected  to  take  any  steps 
to  change  the  lever  or  target  to  its  correct  position  for  this 
train,  or  had  left  the  same  unattended  for  any  length  of  time,  or 
not  fastened,  it  might  be  regarded,  possibly,  as  negligence  on 
the  part  of  the  defendants.  But  neither  of  those  circum- 
stances exist  in  this  case.  Human  care  and  foresight  are  to  be 
used  m  a  relative  sense.  Every  accident  furnishes  some  new 
experience  even  to  the  inost  prudent  men,  and  they  are  thereby 
Vol.  XX.  '    37 


•290  CASES  IN  THE  SUPREME  COURT. 

Cnrtiss  v.  Rochester  and  Syracuse  Rail  Road  Company. 

instructed  how  it  might  have  been  possibly  avoided.  Ai)d  in 
such  cases,  the  inquiry  should  be,  have  the  defendants  taken 
and  exercised  that  care  and  foresight  which  very  careful  men 
exercise  in  similar  circumstances,  and  not  whether  human  care 
and  foresight  could  not  have  avoided  the  accident,  for  that 
would  be  to  require  of  men  a  care  and  foresight  which  should 
prevent  every  accident  except  that  by  the  act  of  God.  The 
rule  as  laid  down  that  every  accident  to  a  passenger  while  in 
the  care  of  the  carrier  is  presumptive  evidence  of  negligence 
so  as  to  shift  the  burden  of  proof  upon  the  defendants,  though 
in  opposition  to  the  rules  of  evidence  in  some  other  cases,  may 
be  well  enough  ;  but  to  add  that  the  defendants  can  only  dis- 
charge themselves  by  showing  that  they  have  done  all  which 
human  care  and  foresight  (made  to  be  regarded  equivalent  to 
aftersight)  could  possibly  have  done  to  guard  against  the  acci- 
dent, is  neither  just  nor  equitable.  For  not  an  accident  has 
happened  (except  by  the  act  of  God,)  that  intelligent  and  sci- 
entific men,  by  a  careful  consideration  of  all  the  circumstances 
attending  the  case,  could  not  tell  how  it  might  probably  or 
possibly  have  been  avoided.  The  true  rule  in  this  case,  we 
submit,  was  that  which  the  learned  judge  was  requested  to  lay 
.down  by  the  defendants'  counsel.  The  plaintiff  showed  that 
she  was  injured.  That  made  out  a  presumptive  case  in  her 
favor  and  cast  the  burden  of  proof  upon  the  defendants  to 
show  that  they  had  not  been  negligent,  but  had  used  due  and 
proper  care  (such  Avas  the  issue,)  to  have  the  plaintiff  safely 
conveyed.  The  defendants  showed  affirmatively,  by  witnesses 
uncontradicted,  that  the  defendants  Avere  not  negligent,  but  had 
used  and  relied  upon  the  due  working  of  a  switch  which,  only  a 
moment  before  the  accident,  had  performed  its  office  well  and 
which  was  proved  to  have  always  worked  well  for  that  purpose, 
and  to  have  been  rightly  placed  and  carefully  locked  up  for  the 
passing  of  the  express  train.  The  facts  and  circumstances 
thus  proved  by  the  defendants  rebutted  and  overcame  the  pre- 
sumptive evidence  which  the  law  makes  for  the  plaintiff  by  her 
showing  merely  an  accident  ;  and  without  any  further  pi'ooj  or 
evidence   of  negligence   on   the   part   of  the   defendants,   the 


CAYUGA— JULY,  1855.  991 


Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Company, 

plaintiff  ought  not  to  be  entitled  to  any  judgment.  Proof 
Dvercomes  presumptive  evidence  in  all  other  cases,  and  in  a  case 
of  this  character  it  would  seem  that  the  proof,  which  the  de- 
fendant gave,  ought  at  least  to  have  balanced  the  presumption 
which  the  law  indulges  in  favor  of  the  plaintiff. 

III.  The  injury  proved  did  not  warrant  the  heavy  verdict 
rendered ;  and,  for  this  reason,  the  defendants  should  have  a 
new  trial.  The  plaintiff  alleges  that  one  of  her  limbs  is  incu- 
rably injured.  It  appears  that  this  alleged  injury  consists  of  a 
superficial  or  a  cutaneous  eruption  upon  one  of  her  limbs.  It  is 
the  uniform  testimony  of  all  the  physicians  examined,  that  the 
bone  is  not  diseased  nor  the  periosteum.  And  it  is  the  concur- 
rent testimony  of  all  the  same  medical  men  that  the  injury  will 
not  prove  permanent,  and  that  the  plaintiff  will  recover  from 
it.  The  neuralgia  and  pains  were  occasioned,  not  by  the  al- 
leged injury,  but  by  a  derangement  of  the  liver  and  kidneys, 
and  came  on  some  time  after  the  accident.  This  liver  affection 
coulc^.  not  be  occasioned  by  this  injury,  but  would  be  by  a  cold. 
As  to  the  origin  of  this  cutaneous  affection  none  q£  the  wit- 
nesses speak  positively,  but  all  concur  that  her  general  health, 
affected  by  other  causes  than  this  injury,  has  prevented  its 
speedy  cure. 

B]/  the  Court,  T.  R.  Strong,  J.  The  fair  construction  of 
the  whole  charge  in  relation  to  bodily  pain  and  suffering  of  the 
plaintiff,  is,  that  in  ascertaining  the  amount  of  her  damages,  it 
would  be  proper  for  the  jury  to  consider  the  bodily  pain  and 
suffering  which  had  occurred,  or  was  likely  to  occur,  in  conse- 
qr.eDce  of  the  injury,  but  that  they  could  not  act  upon  conjec- 
ture as  to  the  prospective  condition  or  situation  of  the  plaintiff; 
they  could  only  regard  in  respect  to  the  future  what  the  evi- 
dense  rendered  reasonably  certain  would  necessaril}'-  and  inevi- 
bly  result  from  the  original  injury.  Thus  understanding  the 
charge,  I  think  the  instruction  as  to  the  propriety  of  taking  into 
consideration  future  boihly  pain  and  suffering,  on  the  question 
Df  damages,  was  wholly  unobjectionable.  Such  a  consequence, 
(rhich  was  necessarily   and  directly    to  flow  from    the  injury, 


292  CxVYUGA— JUNE,  1855. 


Curtiss  V.  Rochester  and  Syracuse  Rail  Road  Company. 

was  as  much  a  part  of  it  as  the  continuance  of  a  physical  disa 
bility  Avhich  the  injury  occasioned.  It  was  certainly  propel 
for  the  jury,  in  estimating  the  damages  to  the  plaintiff,  to  re- 
gard the  effect  of  the  injury  in  future  upon  her  health,  the  use 
of  her  limbs,  her  ability  to  labor  and  attend  to  her  affairs,  and 
generally  to  pursue  the  course  of  life  she  otherwise  might  have 
done ;  and  I  do  not  perceive  why  it  was  not  equally  proper  for 
theiti  to  consider  its  effects  in  producing  bodily  pain  and  suffer- 
ing. But  one  action  could  be  maintained  by  the  plaintiff  for  her 
damages  ;  it  was  not  necessary  for  her  to  wait  until  all  the 
consequences  of  the  injury  had  become  fully  developed  ;  but  she 
was  entitled  to  sue  whenever  she  thought  proper,  and  to 
recover  damages  for  both  past  and  future  pain  of  body,  as 
well  as  for  past  and  future  deprivation  of  health,  or  of  any  of 
her  bodily  powers.  In  respect  to  all  the  subjects  of  damage,  it 
was  requisite  that  they  should  be  the  legal,  direct  and  neces- 
sary results  of  the  injury,  and  that  those  which  at  the  time  of 
the  trial  were  prospective,  should  not  be  conjectural.  It  was 
also  requisite  that  they  should  be  supported  by  such  clear  and 
certain  evidence. as  ought  to  produce  conviction  in  fair  minds. 
All  such  results,  in  the  aggregate,  constituted  the  injury. 

There  is  nothing  speculative  or  contingent,  in  a  legal  view,  in 
regard  to  such  damages.  They  are  wholly  unlike  the  loss  of 
uncertain  profits  by  the  breaking  up  of  a  bargain,  or  the  de- 
rangement of  one's  business,  resulting  from  an  injury. 

It  was  not  necessary  for  the  plaintiff  to  allege  the  damages 
under  consideration  specially  in  her  complaint.  They  were  gen- 
eral damages,  implied  by  law,  as  much  as  a  continued  disability 
consequent  upon  a  broken  limb.  The  amount  was  to  be  con- 
trolled by  the  evidence  disclosing  the  circumstances  of  the  case, 
as  similar  damages  must  be  in  all  such  cases.  The  degree  of 
bodily  pain  and  suffering,  as  of  a  bodily  disability,  of  course  va- 
ries in  different  cases. 

It  cannot  be  said  there  was  no  evidence  to  support  this  item 
of  the  plaintiff's  claim.  The  injury  took  place  in  August,  1852  ; 
the  action  was  tried  in  May,  1854 ;  the  condition  of  the  plain- 
tiff during  the  interval  was  fully  proved  ;  and  medical  testimony 


CAYUGA— JUNE,  1855.  £93 


Curtiss  V.  Rochester  and  Syracuse  Rail  Koad  Company. 

was  given  in  respect  to  the  future  consequences  of  the  injury, 
It  is  true  the  age  of  the  plaintiff  was  not  proved,  and  therefore 
the  evidence  was  less  certain  than  it  would  otherwise  have  been, 
but  I  do  not  think  that  proof  of  her  age  was  indispensable  to 
the  allowance  of  some  damages  of  this  character. 

The  question  of  negligence  was  properly  submitted  to  the 
jury.  Although  there  was  evidence  which  was  uncontradicted, 
that  the  lever  and  target  were  rightly  placed  to  bring  the  switch 
into  a  proper  position,  and  that  the  switch  had  always  before, 
and  but  a  short  time  previous  to  the  injury  on  the  same  day, 
worked  well,  yet  no  witness  was  able  to  testify  that  he  noticed 
the  rails,  and  that  they  were  right,  when  the  cars  came  along ; 
and  the  fact  stands  out  prominently  upon  the  evidence,  that  the 
cars  were  thrown  off  because  the  rails  were  not  right,  or  from 
some  defect  in  securing  them  in  their  place.  The  degree  of 
care  which  the  law  imposes  on  the  defendants  required  them  to 
see  that  the  rails  were  in  a  right  position,  and  not  to  trust  ex- 
clusively to  the  lever,  when  the  rails  were  in  open  view  while 
moving  it ;  and  also  to  see  that  the  rails  were  firmly  secured  ; 
and  if  they  omitted  to  do  so  they  Avere  guilty  of  negligence.  I 
am  clearly  of  opinion  that  it  would  have  been  error  to  withdraw 
this  question  from  the  jury. 

For  the  same  reason,  the  refusal  to  charge,  that  upon  the  un- 
contradicted proof  the  switch  was  rightly  placed,  and  that 
that  rebutted  any  presumption  of  negligence,  was  correct. 

In  regard  to  the  amount  of  damages  awarded  by  the  jury, 
there  was  evidence  showing  that  the  plaintiff  had  been  most  of 
the  time  thus  far  since  the  injury,  incapacitated  by  it  from 
labor ;  and  there  was  also  evidence  tending  to  prove  that  the 
disability  would  be  permanent,  or  at  least  long  continued.  I 
cannot  say  in  view  of  this  evidence,  that  the  sum  is  too  great, 
much  less  that  the  damages  are  so  excessive  as  to  indicate  par- 
tiality, prejudice,  passion,  or  any  thing  improper,  in  the  jury. 

The  motion  for  a  new  trial  must  be  denied. 

[CaYu3a  General  Term,  June  4,  1855  Selden,  Johiison  and  T.  R.  Sirong, 
Justices.] 


294  OASES  IN  THE  SDPKEME  COURT. 


BoYCE  VS.  The  Board  of  Supervisors  of  Cayuga  County 

Even  in  cases  \vliere  no  discretion  is  vested  in  a  board  of  supervisors,  in  relation 
to  an  account  presented  to  theni,  and  a  clear  legal  duty  rests  upon  them,  to 
cause  the  whole  amount  of  the  accoi;nt  to  be  levied,  collected  and  paid,  as  a 
county  charge,  which  they  refuse  to  perform,  an  action  will  not  lie,  against 
the  supervisors.  The  only  remedy  of  the  creditor  is  by  an  application  to  the 
court  for  a  mandamus,  to  compel  them  to  perform  that  duty. 

To  warrant  a  suit  again.st  a  board  of  supervisors,  as  representing  the  county, 
there  must  be  some  duty  of  the  county,  and  the  case  must  be  such  that  an 
action,  founded  upon  that  duty,  is  the  appropriate  remedy. 

Where  the  duty  relied  upon  is  a  duty,  not  of  the  county,  but  of  the  board  of 
supervisors,  no  action  will  lie. 

rpniS  was  an  action  by  the  plaintiiF  to  recover  compensation 
J.  for  his  services  as  a  physician,  in  the  year  1853.  The  com- 
plaint alleged  that  on  or  about  the  1st  of  April,  1853,  a  board 
of  health  was  duly  appointed  and  organized  in  and  for  the  city 
of  Auburn,  pursuant  to  chapter  324  of  the  laws  of  1850  ;  that 
during  the  summer  and  fall  of  1853,  the  small  pox  was  preva- 
lent in  the  city,  and  the  plaintiflf,  being  a  physician,  was  em- 
ployed and  directed  by  the  said  board  of  health  to  attend  upon 
the  sick  and  give  them  the  necessar}'^  medical  advice  and  attend- 
ance ;  that  the  plaintiff  did  so.  and  that  his  services  were  worth 
the  sum  of  $168.75.  That  the  plaintiif  afterwards,  and  on  or 
about  the  28th  of  Nov.  1853,  presented  to  the  defendants,  at 
their  annual  session  held  at  Auburn,  his  bill  for  such  services, 
made  out  in  items,  amounting  to  the  said  sum  of  $168.75  duly 
verified,  and  duly  certified  by  the  said  board  of  health  to  be 
correct,  which  thereby  became,  and  was,  a  proper  charge 
agains't  the  county  of  Cayuga.  That  the  defendants  had  no 
discretion  as  to  the  allowance  of  the  plaintiflF's  account  and 
were  precluded  from  exercising  an^j  discretion  thereon  by  the 
certificate  of  the  said  board  of  health,  but  that  the  amount  of 
said  account  was  made  a  charge  against  the  county  of  Cayuga, 
by  the  said  certificate  of  the  board  of  health,  and  tliat  the 
said  account  became  thereby  a  debt  against  the  county.  And 
the  plaintiff  insisteti  that  the  defendants  were  bound,  at  their 
said  annual    meeting,    to   levy,   collect  and   pay  the   said   ac- 


CAYUGA- JUNE,  1855.  295 


Boyce  v.  The  Supervisors  of  Cayuga. 

30unt,  in  the  same  manner  as  other  county  charges  are  levied, 
collected  and  paid  ;  but  the  complaint  alleged  that  they  neglect- 
ed and  refused  so  to  do ;  wherefore  the  plaintiff  demanded 
judgment  against  them,  for  the  amount  of  his  account.  The 
answer  admitted  the  material  facts  set  forth  in  the  complaint,  but 
alleged  that  the  plaintiff's  account  contained  many  items  which 
the  board  of  health  had  no  right  to  allow,  and  insisted  that 
they,  the  defendants,  were  not  bound  to  levy,  collect  and  pay 
the  said  account.  On  the  trial,  the  plaintiff  proved  his  employ- 
ment by  the  board  of  health,  and  the  performance  of  the 
services  charged  for ;  also  that  the  account  had  been  presented 
to  the  board  of  health,  who  made  the  following  certificate,  at 
the  foot  thereof:  "We  certify  that  the  above  bill  is  correct  and 
rendered  by  the  said  Boyce  for  the  board  of  health  of  the 
city  of  Auburn,  being  employed  by  them."  (Signed  by  the 
board.)  The  plaintiff  further  proved  that  the  account,  with 
the  said  certificate  appended,  had  been  presented  to  the  board 
of  supervisors,  who  refused  to  audit  and  allow  the  same. 
With  the  consent  of  the  counsel  for  both  parties,  the  court 
directed  a  verdict  in  favor  of  the  plaintiff  for  the  sum  of 
$179.14,  subject  to  the  opinion  of  the  court  at  a  general  tenn, 
on  a  case. 

Geo.  O.  Ralhbun,  for  the  plaintiff. 

D.  H.  Marsh,  for  the  defendants. 

By  the  Court,  T.  R.  Strong,  J.  Assuming,  without  de- 
ciding, that  no  discretion  is  vested  in  the  board  of  supervisors 
in  relation  to  the  account  of  the  plaintiff,  and  that  a  clear  legal 
duty  rests  upon  them  to  cause  to  be  levied,  collected  and  paid, 
the  whole  amount  of  the  account  as  a  county  charge,  which  they 
refuse  to  perform,  I  am  satisfied  that  the  law  does  not  allow  to 
the  plaintiff  a  remedy  by  action ;  and  that  his  only  remedy  is 
hy  an  application  to  the  court,  for  a  mandamus,  to  compel  the 
supervisors  to  perform  that  duty.  The  board  of  supervisors  are 
not  a  corporation  ;  and  as  such  a  board,   and  apart  from   the 


296  CASES  i:n  the  suriiLTvrE  court. 


Boyce  r.  The  Supervisors  of  Cayuga. 

county,  ai-e  not  liable  to  a  suit ;  they  can  only  be  sued  as  repre- 
senting tbe  county,  under  the  statute  which  prescribes  that  in 
suits  against  a  county  the  county  shall  be  sued  "in  the  name 
of  the  board  of  supervisors  thereof."  To  warrant  a  suit  against 
them  as  representing  the  county,  there  must  be  some  duty  of 
the  county,  and  the  case  must  be  such  that  an  action  founded 
upon  that  duty  is  the  appropriate  remedy.  When  they  are 
made  defendants  in  form  in  such  a  case,  the  county  are  the  real 
defendants.  The  difficulty  in  maintaining  an  action  in  the  pres- 
ent case  is,  that  the  duty  upon  which  it  must  rest  is  a  duty, 
not  of  the  county^,  but  of  the  board  of  supervisors.  The  statute 
{Laws  of  1850,  p.  692,  §  7)  makes  the  expenses  therein  men 
tioned  a  county  charge,  and  directs  that  they  "  shall  be  levied, 
collected  and  paid,  under  the  direction  of  the  said  board  of 
supervisors  of  the  respective  counties,  in  the  same  manner  as 
other  county  charges  are  levied,  collected  and  paid."  The  cause 
of  action  is  the  neglect  or  refusal  of  the  supervisors  to  perform 
this  duty.  By  the  revised  statutes  ( Vol.  1,  p.  364)  each  county 
has  limited  corporate  powers,  and  among  others  power  "  to  sue 
and  be  sued,  in  the  manner  prescribed  by  law  ;"  but  there  does 
not  appear  to  be  any  good  reason  why  it  should  be  subjected  to 
a  suit  for  this  failure  of  duty  by  the  supervisors,  and  there  is 
no  provision  of  statute  imposing  upon  it  that  liability.  If  an 
action  should  be  permitted,  no  execution  could  be  issued  on  the 
judgment.  (2  R.  iS.  475,  §  107.)  And  some  further  remedy 
would  be  necessary  if  the  supervisors  should  refuse  to  provide 
for  its  payment.  {Id.  474,  §  102  to  104.)  The  remedy  by 
mandamus,  operating  upon  the  supervisors  as  officers  of  the 
county,  is  a  full,  efficient,  and,  as  I  think,  the  only  remedy  of 
the  plaintiff. 

In  The  People  v.  The  Supervisors  of  Columbia,  (10  Wend. 
363,)  it  was  held  that  a  mandamus  against  the  supervisors  was 
the  proper  remedy  when  a  duty  rested  upon  those  officers  *tc 
cause  to  be  levied,  and  collected,  a  certain  sum,  made  a  county 
charge,  in  like  manner  as  other  charges  upon  the  county  were 
required  to  be  levied  and  collected ;  and  that  an  action  against 
the  county  would  not  lie.     Chief  Justice  Savage,  in  deliverinc* 


CAYUGA— JUNE,  1855.  297 


Boyce  v.  The  Supervisors  of  Cayuga. 

ihe  opinion  of  the  court,  says,  "  If  an  action  lies  in  this  case, 
then  a  mandamus  shouhi  be  refused.  I  think  an  action  will  not 
lie.  This  statute  directs  the  supervisors  to  levy  and  collect  the 
amount  of  the  deficiency  ;  it  is  a  duty  imposed  upon  those  offi- 
cers, which  should  be  performed  by  them,  but  for  their  neglect 
the  county  in  its  corporate  capacity  should  not  be  punished  ;  nor 
does  any  liability  attach  to  the  county  to  pay  the  money  in  any 
Avay  other  than  that  pointed  out  in  the  statute."  {See  Brady 
V.  The  Supervisors  of  New  York,  2  Sa?idf.  S.  C.  R.  460.) 

The  principle  that  a  mandamus  is  the  proper  remedy  in  such 
cases,  is  recognized  and  applied  in  numerous  authorities. 
(Bright  V.  Supervisors  of  Chevango,  18  John.  242.  Johnston 
V.  Supervisors  of  Herkimer,  19  id.  272.  The  People  v.  Su- 
pervisors of  Cayuga,  2  Cowen,  530.  The  People  v.  Super- 
visors of  SL  Lawrence,  5  ?</.292.  The  People  v.  Supervisors 
of  Dutchess,  9  Wend.  508.  Tlie  People  v.  Supervisors  of 
Ulster,  3  Barb.  S.  C.  R.  832.  The  People  v.  Edmonds,  15  ^ 
id.  540.)  All  these  and  other  similar  authorities  impliedly  hold, 
that  an  action  will  not  lie  ;  as  the  principle  is  clear  and  undis- 
puted that  a  mandamus  will  not  be  issued  when  there  is  an  ad- 
equate remedy  by  action. 

In  The  People  v.  The  Supervisors  of  Fulton,  (14  Barb. 
52,)  the  doctrine  is  advanced,  although  it  was  not  necessary  to 
the  decision  of  the  case,  in  the  view  taken  by  the  court  of  another 
point,  that  if  the  board  of  supervisors  "has  neglected  or  refused 
to  perform  a  legal  duty  enjoined  upon  them,  and  which  they 
were  bound  to  discharge,  an  action  will  lie  against  them  ;"  and 
therefore  a  mandamus  cannot  be  granted.  These  cases  are  re- 
ferred to  in  support  of  the  doctrine  :  Ex  parte  Lynch,  (2  Hill, 
45.)  The  People  v.  The  Mayor  of  New  York,  (25  Wend. 
680.)  Ex  parte  The  Fireman's  Ins.  Co.,  (6  Hill,  243.)  In 
the  first  case  a  mandamus  against  officers  acting  as  supervisors 
of  New  York  was  refused,  on  the  ground  that  the  relator  had 
an  ample  remedy  by  action  against  The  Corporation  of  New 
York  ;  inasmuch  as  the  statute  allowed  him  a  certain  sum  as 
his  salary,  to  be  paid  by  the  common  council  of  the  city,  out  of 
the  city  treasury.     The  next  case  is  of  a  like  character.     And 

Vol".  XX.  38 


298        CASES  IN  THE  SUPREME  COUET. 

Glen  Cove  Mutual  Insurance  Company  v.  Harrold. 

in  the  remaining  case  a  mandamus  against  the  Commercial  Bank 
of  Albany,  a  private  corporation,  was  refused  because  there  was 
an  adequate  remedy  by  action.  None  of  these  authorities  sup- 
port the  doctrine  that  an  action  will  lie  against  a  board  of  su- 
pervisors, or  a  county,  in  cases  like  the  present;  and  I  do  not 
find  any  adjudication  sustaining  it.  (^S'ee  Brady  v.  The  Sii- 
pervisor.s'  of  New  York,  2  Sandf.  474.) 
There  must  be  judgment  in  favor  of  the  defendants. 

[Cayuga  General  Term,  June  4,  1855.     Selden,  Johnson  and  T.  R.  Strong, 
Justices.] 


The  Glen  Cove  Mutual  Insurance  Company  vs.  William 
Harrold,  jun.  and  William  Harrold. 

Rights  of  action  which  had  accrued  previous  to  the  time  when  the  code  was 
enacted,  and  which  then  existed,  are  expressly  excluded  (by  sec.  66)  from  tho 
operation  of  the  section  which  requires  that  a  new  promise,  in  order  to  take  a 
case  out  of  the  statute  of  limitations,  sliall  be  in  writing. 

A  contract  to  guaranty  the  payment  of  a  promissory  noto,  although  made  Simul- 
taneously witli  the  note,  and  written  upon  the  same  paper,  and  upon  a  consid- 
eration advanced  on  the  credit  of  the  guarantor,  conformably  to  a  previous 
understanding,  must  express  the  consi(Jeration  upon  which  it  is  made,  or  it 
will  be  void. 

THE  nature  of  this  action,  and  the  material  facts,  are  stated  in 
the  opinion  of  the  court.     This  was  a  motion  for  judgment, 
after  a  trial  at  the  circuit. 

W.  S.  McCon7i,  for  the  plaintiff. 

E.  J.  Beach,  for  the  defendant  Wm.  Harrold. 

S.  B.  Strong,  J.  This  action  is  to  recover  from  the  defend- 
ants the  unpaid  balance  of  the  principal  sums  of  money  speci- 
fied in  three  promissory  notes  made  by  William  Harrold,  jun. 
and  the  payment  whereof  was  guarantied  by  his  father  William 


WESTCHESTER— JUNE,  1855  299 

Glen  Cove  Mutual  Insurance  Company  v,  Harrold. 

Harrold,  the  said  two  defendants,  with  interest  on  each  note  at 
the  rate  of  six  per  cent  per  annum  from  the  1st  day  of  April, 
1848.  The  notes  with  the  guaranties  thereon  are  in  the  words 
and  figures  following : 

"  .*:'100.  On  demand  I  promise  to  pay  Elwood  Valentine, 
treasurer  of  the  Glen  Cove  Mutual  Insurance  Company,  or  his 
successors  in  oiBce,  one  hundred  dollars,  with  interest  at  six  per 
cent  per  annum,  for  value  received. 

Olen  Cove,  May  13, 1843.  William  Harrold,  jun." 

(Indorsed)     "  I  guaranty  the  payment  of  the  within  note. 

William  Harrold." 

Interest  paid  yearly  up  to  the  1st  of  April,  1848,  and  $10  of 
the  principal  paid  4th  January,  1849.  The  payments  being 
indorsed  on  the  note. 

"  $450.  On  demand  I  promise  to  pay  Elwood  Valentine, 
treasurer  of  the  Glen  Cove  Mutual  Insurance  Company,  or  his 
successor  in  office,  four  hundred  and  fifty  dollars,  with  six  per 
cent  interest  from  date,  for  value  received. 

Glen  Cove,  Sept.  22. 1813.  William  Harrold,  jun." 

(Indorsed)     "  I  guaranty  the  payment  of  the  within  note. 

•  William  Harrold." 

Payments  indorsed  of  interest  annually  up  to  1st  April,  1848 
and  of  $40  on  account  of  the  principal,  4th  January,  1849. 

"  S200.  On  demand  I  promise  to  pay  Elwood  Valentine, 
treasurer  of  the  Glen  Cove  Mutual  Insurance  Company,  or  his 
successor  in  office,  the  sum  of  two  hundred  dollars,  with  interest 
from  date  at  six  per  cent  per  annum,  for  value  received. 

Glen  Cove,  Feb.  13,  1846.  William  Harrold,  jun." 

(Indorsed)     "I  guaranty  the  payment  of  the  within  note. 

William  Harrold." 

Payments  indorsed  of  interest  annually  up  to  1st  April,  1848, 
and  of  $20  on  account  of  the  principal,  4th  January,  1849. 

The  notes  were  given  for  moneys  loaned  at  their  respective 
dates,  by  the  plaintiff's,  to  William  Harrold,  jun.  One  of  the 
terms  of  the  loans  in  each  case  was  that  the  payment  of  each 
note  was  to  be  guarantied  by  William  Harrold.     This  was  com- 


300  CASES  IN  THE  SUPREME  COURT. 

(jlen  Cove  Mutual  Insurance  Company  v.  Ilan-old. 

p  — 

municated  to  William  Harrold  when  he  signed  the  guaranty  on 
each  note.  The  money  in  each  case  was  paid  to  William  Har- 
rold, jun.  on  his  delivering  the  note  with  the  guaranty  indorsed 
upon  it,  and  signed  by  Wiliam  Harrold,  and  principally  upon 
the  credit  of  the  guarantor.  The  payments  indorsed  wore 
made  by  William  Harrold,  jun.  without  the  participation  of 
William  Harrold.  In  the  year  1849,  William  Harrold  promised 
verbally  to  pay  the  three  notes  in  a  given  time,  which  expired 
before  the  commencement  of  this  action,  and  said  that  he 'wanted 
to  have  time  to  turn  himself.  He  also  said  that  his  son  William 
would  ruin  him,  and  that  he  would  have  to  sell  his  pi-operty. 

William  Harrold  (the  father)  alone  answered  the  complaint. 
He  admits  the  signing  of  the  notes  by  the  maker,  and  of  the 
guaranties  by  himself.  One  point  upon  which  he  insists  is  that 
the  right  of  action,  if  any  ever  existed  against  him,  was  barred 
by  the  statute  of  limitations.  This  objection  was  fully  raised 
and  taken  in  his  answer.  The  revised  statutes  and  the  code 
both  provide  that  actions  upon  contracts  not  under  seal  must  be 
brought  within  six  years  after  the  cause  of  action  shall  have 
accrued.  Under  the  revised  statutes  the  cause  of  action  might 
be  continued  or  revived  by  a  inere  verbal  promise  such  as  was 
made  in  this  case.  The  code,  however,  provides  that  such 
promise,  to  be  valid,  in  cases  coming  under  its  operation,  must 
be  in  writing.  That  however  is  inapplicable  to  the  case  under 
consideration,  as  it  is  expressly  declared  (original  §  G6)  that  the 
title  in  which  it  is  included  shall  not  extend  to  cases  where  the 
rifjht  of  action  had  then  accrued.  In  this  instance  the  rio-ht  of 
action,  if  any,  had  accrued  and  existed  at  the  time  when  the 
code  was  enacted.  I  am  satisfied,  notwithstanding  what  was 
said  in  Wadsworlh  v.  Thomas,  (3  Code  Rep.  227,)  that  a  case 
like  the  present  is  expressly  excluded  from  the  operation  of  the 
section  requiring  that  the  new  promise,  to  be  valid,  must  be  in 
writing. 

The  more  material  question  however  iS;  whether  William  Har- 
rold, the  guarantor,  was  ever  legally  bound  for  the  payment  of 
tliese  notes.  The  objection  to  his  liability  is  that  no  considera- 
tion is  expressed  in  either  guaranty.     I  must  confess  that  au« 


WESTCHESTER— JUNE,  1855.  301 

Glen  Cove  Mutual  Insurance  Company  v.  Harrold. 

tecedently  to  a  late  decision  in  the  court  of  appeals  my  opinion 
was  that  if  the  principal  contract  and  the  guaranty  arc  both  en 
the  same  piece  of  paper  and  were  written  at  the  same  time,  they 
should  be  considered  as  one  transaction,  and  the  signature  of 
the  guarantor  should  be  deemed  a  subscription  by  him  not  only 
to  the  guaranty,  but  also  to  the  acknowledgment  of  the  consid 
eration  in  effect  expressed  by  the  principal  contract,  and  that 
both,  taken  together,  should  be  considered  as  a  compliance  with 
the  statute.  I  so  expressed  myself  in  the  court  of  appeals  in  the 
case  of  Brown  v.  Curtis,  (2  Comst.  2-33,)  and  as  I  then  sup- 
posed, and  still  think,  the  opinion  was  sustained  by  five  of  the 
other  then  judges  of  that  court.  It  is  true  I  intimated  an  im- 
pression that  this  might  have  in  effect  rather  overstrained  what 
is  actually  done  by  the  guarantor  in  order  to  meet  the  equities 
of  particular  cases ;  but  I  added  that,  (as  I  then  thought)  the 
rule  had  been  settled  in  the  court  for  the  correction  of  errors. 
Judge  Jewett,  in  the  case  of  Durham  v.  Manroic,  (2  Comst. 
550,)  says  that  there  are  many  cases  to  show  that  a  guaranty 
made  at  the  same  time  with  the  principal  contract,  and  consti- 
tuting an  essential  ground  of  the  credit  given  to  the  principal 
debtoif,  requires  no  other  consideration  than  that  which  upholds 
the  principal  contract ;  and  that  it  had  also  been  held  that  in 
such  cases  the  consideration  need  not  be  expressed  in  the  writ- 
ten guaranty,  but  may  be  shown  by  parol  evidence.  True,  he 
did  not  concur  in  the  propriety  of  the  rule,  but  I  cite  his  authority 
U)  show  his  assent  to  what  I  have  stated  was  the  effect  of  pre- 
vious decisions.  However  all  these  decisions  (including  those 
made  by  our  court  of  dernier  resort)  were  overruled  by  the 
court  of  appeals  in  the  case  of  Breicster  v.  Silence,  decided  in 
April,  1853.(a)  There,  as  in  this  case,  the  note  and  guaranty 
were  signed  simultaneously,  and  the  consideration  was  advanced 
upon  the  credit  of  the  guarantor,  conformably  to  a  previous  un 
derstanding.  But  it  was  decided  that  the  guaranty  was  void. 
That  is  the  latest  decision,  and  I  must  submit  to  its  authority. 
There  must  be  judgment  against  the  defendant  William  Har- 

(a)  4  Selde7i,  207. 


302        CASES  IN  THE  SUPREME  CO  CRT. 

The  People  v.  Scrugham. 

rold,  jun,  for  the  amount  due  on  the  three  notes,  and  the  costa 
against  him,  and  in  favor  of  William  Harrold,  (the  father,)  to  be 
entered  as  of  the  day  of  the  trial. 

f"\VKSTCHESTf;R  SPECIAL  Term,  Junc  5.  1855.     S.  B.  strong,  Justice.] 


The    People    ex    rel.  Munson  I.    Lockwood  vs.  William 
W.  Scrugham. 

Where  an  office  is  already  filled,  by  a  person  who  has  been  admitted  and  swoni, 
and  is  in  by  color  of  ri<rht,  a  mandamus  is  never  issued  to  admit  another  per- 
son ;  the  proper  remely  of  the  applicant  being  a  quo  warranto,  or  the  action 
su'ostituted  in  its  place  by  the  code. 

But  where  the  relator  had  been,  for  several  years  before,  and  was.  at  the  time 
when  the  commission  to  the  defendant  was  issued,  the  actual  occupant,  claim- 
ing under  color  of  right  to  hold  the  office,  and  never  liaving  at  any  time  re- 
linquished it;  Held  that  if  his  claim  was  valid,  neither  the  commission  to  the 
defendant  nor  the  interference  of  the  latter  in  the  discharge  of  the  duties, 
would  constitute  an  actual  exjiulsion  from  the  office,  inasmuch  as  the  posses- 
sion would  follow  the  right;  and  that  it  was  not  a  case  of  expulsion,  but  of 
interference  by  the  defendant  with  the  functions  of  an  office  actually  held  by 
another. 

In  such  a  case  the  incumbent  should  not  be  required  to  elect  to  consider  himself 
out  of  possession  of  the  office,  and  then  bo  obliged  to  resort  to  a  tedious  action 
to  procure  his  restoration. 

The  relator  was  duly  elected  a  brigadier  general,  by  the  field  officers  of  his 
brigade,  in  1841.  He  held  the  office,  and  was  in  the  discharge  of  its  duties, 
when  the  act  of  May  13,  1846,  was  passed.  Under  that  act  a  brigade  was 
formed,  consisting  of  the  militia  of  his  previous  command,  with  a  slight  ex- 
ception, with  the  addition  of  the  militia  of  three  other  counties.  The  relator 
was,  on  the  9th  of  June,  1847,  assigned  to  the  command  of  the  brigade  thus 
constituted,  (the  7th)  pursuant  to  a  provision  contained  in  the  otn  section,  in 
Ihe  following  words :  "The  brigadier  general  in  connnission  and  highest  in 
rank  residing  in  such  brigade  district  shall  be  the  commanding  officer  of  such 
brigade."  He  held  such  command  when  the  constitution  of  1846  went  into 
effect.  By  that  instrument  the  provision  for  electing  brigadier  generals  by 
the  field  officers  of  the  brigade  was  continuel.  The  5th  section  of  the  11th 
article  is  in  these  words  :  "  The  commissioned  officers  of  the  militia  shall  ,be 
commissioned  by  the  governor,  and  no  commissioned  officer  shall  be  removed 
from  office,  unless  by  the  senate,  on  the  recommendation  of  th*"  governor, 


SUFFOLK— AUGUST,  1855.  303 


The  People  v.  Scrugham. 


etating  the  grounds  on  which  such  removal  is  recomnicided,  or  by  the  decis- 
ion of  a  court  martial,  pursuant  to  law.  The  present  officers  of  the  militia 
shall  hold  their  commissions  svhject  to  removal  as  befoi'e  provided."  On  the 
5th  of  May,  1855,  the  governor  issued  a  commission  to  the  defendant,  as 
brigadier  general  of  the  7th  brigade,  and  on  the  same  day  issued  a  general 
order,  revoking  so  much  of  the  order  of  June  9th,  184Y,  as  assigned  the  com- 
mand of  the  brigade  to  the  relator,  and  directed  the  defendant  to  assume  the 
command  of  the  brigade.  Held  that  the  governor  was  not  authorized,  by  the 
aot  of  April  17,  1854,  or  any  other  statute,  to  displace  the  relator,  or  to  ap- 
point the  defendant ;  and  that  both  the  commission  to  the  defendant  and  the 
general  order  accompanying  it  were  null  and  void. 
A  peremptory  mandamus  was  accordingly  awarded,  requiring  the  defendant  to 
permit  the  relator  to  exercise  the  office  of  brigadier  general,  without  interrup- 
tion or  intrusion  from  or  by.  the  defendant. 

DEMURRER  to  the  return  made  to  an  alternative  writ  of 
mandamus. 

M.  I.  Lockwood,  in  person,  and  Ralph  Lockwood,  for  the 

relator. 

W.   W.  JScrngham,  in  person,  and  John  Thompson,  for  the 

defendant. 

S.  B.  Strong,  J.  This  case  is  before  me,  upon  an  alterna- 
tive mandamus,  with  several  affidavits  annexed  to  the  writ,  an 
answer,  and  a  demurrer.  The  demurrer  of  course  admits  the 
fiicts  and  the  direct  denials  contained  in  the  answer,  but  not 
such  assertions  or  denials  as  are  merely  inferential.  The  facts 
as  they  are  represented  in  the  pleadings  are  as  follows : 

The  relator  was  in  1841,  duly  elected  brigadier  general  of 
the  15th  brigade,  consisting  of  the  militia  of  the  county  of 
Westchester.  He  shortly  after  his  election  received  a  commis- 
sion from  the  governor^  and  thereupon  entered  upon  the  per- 
formance of  the  duties  of  the  office,  which  he  continued  to 
discharge  until  the  new  organization  of  the  militia,  pursuant  to 
the  act  of  May  13th,  1846.  Under  that  organization,  the  divis- 
ion, comprehending  Westchester  county,  was  divided  into  two 
brigades,  one  of  which  consisted  of  the  militia  of  the  county, 
with  the  exception  of  one  town,  and  of  the  counties  en  Long 


304  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Scrugham. 

Island.  The  relator,  being  the  brigadier  general  in  commis- 
sion and  highest  in  rank  residing  in  the  brigade  district  incluvl- 
ing  the  greater  part  of  Westchester  county,  thereupon  became, 
according  to  the  provisions  of  the  act  of  1846,  (and  whether  they 
are  valid  or  not  will  be  considered  hereafter,)  the  commanding  offi- 
cer of  the  brigade,  and  the  command  of  such  brigade  was  formally 
assigned  to  him  in  general  orders.  Under  the  act  of  May  13th, 
1847,  the  counties  on  Long  Island  were  detached  from  the  brigade 
then  under  the  command  of  the  relator,  and  a  district  was  formed, 
consisting  of  the  militia  of  the  counties  of  Westchester,  Putnam 
and  Rockland,  which  thereupon  constituted  and  still  continues  tc 

constitute  the  7th  brigade.     The  command  of  that  brigade  dis- 
cs o 

trict  was  assigned  by  the  commander-in-chief,  in  general  orders 
dated  the  9th  of  June,  1847,  to  the  relator,  he  being  the  brig- 
adier  general  residing  in  such  district  highest  in  rank  who  was 
in  command  on  the  1st  day  of  November,  1846,  and  who,  (it  is 
to  be  inferred,  as  there  is  no  allegation  to  the  contrary,  and  the 
legal  presumption  is  in  favor  of  the  action  of  the  highest  military 
authority  in  our  state,)  had  performed  military  duty  according 
to  "the  requirements  of  said  last  mentioned  act.  The  relator 
thereupon  assumed  the  command  of  the  7th  brigade,  as  brigadier 
general,  and  continued  to  act  in  that  capacity  until  he  was  inter- 
rupted by  the  defendant.  On  the  5th  of  May,  1855,  the  governor 
of  the  state  issued  a  commission  to  the  defendant  as  brigadier 
general  of  the  said  7th  brigade,  and  on  the  same  day  issued  a 
general  order  revoking  so  much  of  the  order  of  June  9th,  1847, 
as  assigned  the  command  of  the  brigade  to  the  relator,  and  di- 
rected  the  defendant  "  to  assume  the  command  of  said  brigade." 
The  defendant,  on  receiving  his  commission  and  the  general 
order  which  accompanied  it,  took  the  requisite  official  oath,  and 
."ommenced  acting  as  commander  of  the  brigade,  and  thereby 
interrupted  the  cfficial  action  of  the  relator. 

The  alternative  mandamus  requires  the  defendant  to  per- 
mit the  relator  to  exercise  the  office 'of  brigadier  general 
of  the  7th  brigade  Avithout  any  interruption  or  intrusion  from 
or  by  the  defendant,  or  to  signify  the  cause  why  he  will 
not  do  so.     The  defendant  claims  a  right  to  the  office  under  ihe 


SUFFOLK— AUGUST,  1855.  205  ' 


The  People  v.  Scrugham. 


commission  and  general  order  to  him,  which  he  contends  were 
fully  warranted  by  the  act  of  April  17th,  1854.  He  also  ob- 
jects to  the  relator's  right  to  execute  the  duties  of  the  actual 
commandant  of  the  brigade  at  the  time  when  the  commission 
and  orders  of  the  5th  of  June,  1855,  were  issued. 

The  counsel  for  the  defendant  contended,  on  the  argument, 
that  the  solicited  remedy  by  mandamus  would  be  inappropriate 
under  the  circumstances  stated  by  the  relator,  as,  if  his  claim 
was  well  founded,  he  might  and  should  have  resorted  to  the 
action  substituted  by  the  code  for  the  writ  of  quo  warranto^ 
(§  432,  suhd.  1.)  It  is  undoubtedly  true,  as  was  decided  in  the 
case  of  The  People  v.  -The  Corporation  of  the  City  of  New 
York,  (3  John.  Cas.  79,)  that  where  an  office  is  already  filled 
by  a  person  who  has  been  admitted  and  sworn,  and  is  in  bj 
color  of  right,  a  mandamus  is  never  issued  to  admit  another 
person.  The  proper  remedy  for  the  applicant  was  formerly  by 
a  quo  warranto,  and  would  be  noAV  by  the  substituted  action. 
But  an  important  question  in  the  case  under  consideration  is, 
which  of  the  two  competitors  actually  Jills  the  disputed  office. 
I'he  relator  had  been  for  several  years  before,  and  was  at  the 
time  when  the  commission  to  the  defendant  was  issued,  the 
actual  occupant,  and  claimed  then,  and  still  claims,  under  color 
of  right,  to  hold  the  office.  He  has  never  at  any  time  relin- 
quished it.  If  his  claim  is  valid,  neither  the  commission  to  the 
defendant,  nor  the  accompanying  order  of  the  commander-in- 
chief,  nor  the  subsequent  interference  by  the  defendant,  would 
constitute  an  actual  expulsion  from  the  office.  The  possession 
would  follow  the  right,  as  it  uniformly  does  where  acts  of  own- 
ership are  simultaneously  exercised  by  contestants,  and  espe- 
cially where  the  actual  title  is  in  the  prior  occupant.  This, 
then,  if  the  plaintiflf 's  claim  is  well  founded,  is  not  a  case  of 
expulsion,  but  of  interference  by  the  defendant  with  the  func- 
tions of  an  office  actually  held  by  another.  In  such  a  case,  tho 
incumbent  should  not- be  required  to  elect  to  consider  himseit 
out  of  possession  of  the  office,  and  then  to  resort  to  a  tedious 
action  to  procure  his  restoration.  Besides,  he  could  not  institute 
the  action  without  the  assent  and  co-operation  of  the  attorney 

Vol.  XX.  39 


306   '       CASES  m   THE  SUPREME  COURT. 


The  People  v.  Scrugham. 


general,  and  that  officer  might  so  fiir  doubt  the- justice  of  his 
claim,  (and  especially  where  it  might  be  based  upon  the  asser  • 
tion  of  the  assumption  of  unauthorized  power  by  the  executive, 
of  whom  he  is  the  official  adviser,)  as  to  withhold  his  consent, 
and  til  en  the  unlawfully  ejected  officer  would  be  without  a 
remedy,  or  if  there  "should  be  any  it  wouM  be  very  circuitous.. 
It  seems  to  mc  that  the  interests  of  the  officer,  and  in  a  case 
like  the  present,  of  the  public,  require  a  more  certain,  adequate 
and  speedy  remedy.  He  should  be  promptly  quieted  in  the 
discharge  of  his  duties,  and  the  many  who  are  subjected  to  his 
command,  in  the  performance  of  their  military  duty,  should  be 
informed  without  unnecessary  delay  to  whom  they  owe  obe- 
dience as  their  lawful  superior  officer.  I  think  that  if  the 
relator  is  entitled  to  any  relief  it  should  be  by  mandamus. 
That  mode  of  proceeding  Avill  not  deprive  the  defendant  of 
any  right  to  which  he  would  be  entitled  in  an  action  in  the 
nature  of  a  quo  warranto  under  the  code.  He  may,  in  the 
one  case,  rel}',  as  he  might  have  relied  in  the  other,  upon  his 
titio,  and  if  there  had  been  any  question  of  fact,  it  might  hav«^ 
been  submitted  to  a  jury. 

The  main  question  in  this  controversy  is,  which  of  these 
gentlemen  has  the  better  title  to  the  actual  command  of  the 
existing  7th  brigade  of  our  state  militia. 

The  relator  was  duly  elected  a  brigadier  general  by  the  field 
officers  of  his  brigade  in  ]841.  He  held  the  office,  and  was  in 
the  discharge  of  its  duties,  when  the  act  of  May  13th,  1846, 
was  passed.  Under  that  act  a  brigade  was  formed,  consisting 
of  the  militia  of  his  previous  command,  with  a  slight  exception, 
with  the  addition  of  the  militia  of  the  three  counties  on  Long 
Island.  The  relator  was  assigned  to  the  command  of  the 
brigade  thus  constituted,  pursuant  to  the  provision  contained 
in  the  8th  section  of  that  act,  which  is  in  the  following  words  : 
"  The  brigadier  general  in  commission  and  highest  in  rank  re- 
siding in  such  brigade  district  shall  be  the  commanding  officer 
of  such  brigade."  He  held  such  command  when  our  present  state 
constitution  went  into  eifect.  By  that  instrument  the  provision 
for  electing  brigadier  generals  by  the  field  officers  of  the  brig- 


SUFFOLK— AUGUST,  1855.  307 


The  People  v.  Scrugham. 


ftde  was  continued.  The  5th  section  of  the  11th  article  is  in 
the  following  words  :  "  The  commissioned  officers  of  the  militia 
shall  be  commissioned  by  the  governor,  and  no  commissioned 
officer  shall  be  removed  from  office  unless  by  the  senate,  on  the 
recommendation  of  the  governor,  stating  the  grounds  on  which 
such  removal  is  recommended,  or  by  the  (decision  of  a  court 
martial,  pursuant  to  law.  The  pi'esent  officers  of  the  militia 
shall  hold  their  commissions  subject  to  removal  as  before  pro- 
vided." The  next  (6th)  section  provides  that  if  the  mode  of 
election  and  appointment  of  militia  officers  directed  by  that  con- 
stitution should  not  be  found  conducive  to  the  improvement  of 
the  militia,  the  legislature  might  provide  a  new  mode,  "  if  two 
thirds  of  the  members  present  in  each  house  should  concur 
therein."  That  the  relator  held  the  office  of  brigadier  general 
when  that  constitution  "  came  in  force,"  and  could  be  removed 
only  pursuant  to  its  provisions,  there  can  be  no  doubt.  He  had 
not  then  been  degraded  from  the  office.  The  bounds  of  the 
brigade  commanded  by  him  had  been  greatly  extended,  and 
therefore  it  is  true  that  it  then  comprehended  many  whose  field 
officers  had  no  voice  in  his  election.  But  I  am  not  aware  that 
it  has  ever  been  decided  that  one  holding  an  elective  office  shall 
be  denuded  of  it  by  the  enlargement  of  the  district  which 
elected  him,  and  to  which  his  official  action  Avas  confined.  The 
universal  practice  has  been  the  other  way.  Additions  have 
been  made  from  time  to  time  to  the  territories  of  the  United 
States,  of  some  of  the  states,  of  counties,  and  of  towns,  and  in 
all  cases  the  jurisdiction  of  the  federal,  state,  county,  and  town 
authorities,  has  been  extended  in  the  newly  acquired  territory, 
although  its  inhabitants  had  no  voice  in  their  election.  The 
constitutional  provision  prescribes  the  mode  of  their  election, 
but  not  the  limits  of  the  territory  over  which  their  authority 
might  extend.  If  the  alteration  of  the  military  districts  eifect- 
ed  by  the  act  of  1846  had  ejected  the  officers  in  such  districts, 
none  of  the  field  officers,  and  but  few  of  the  company  officers, 
would  have  continued  in  office.  That  act  did  not  contemplate 
80  great  and  extensive  a  change,  nor  was  it  in  fact  made.  The 
constitutional  requisition  was  satisfied  by   the   mode  of  their 


308  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Scnigham. 

election.  There  was  no  express  confinement  of  tlieir  action  oi 
power  to  the  limits  of  their  original  districts,  nor  was  there  any 
reason  why  they  should  be  thus  limited  by  implication.  Had 
the  act  of  1846  provided  that  the  various  militia  officers  might 
be  transferred  to  districts  wholly  new,  that  might  have  been 
deemed  an  evasion  of  the  constitution,  and  so  far  void  ;  but 
that  act  carefully  provides  that  the  retained  officer  shall  be  the 
highest  in  rank  in  the  consolidated  district  of  which  his  own 
former  district  in  which  he  resided  should  constitute  a  part. 
I  am  satisfied  that  the  alterations  made  by  the  act  of  1846  did  not 
require  new  elections  of  milifta  officers,  and  that  therefore  the 
relator  was  in  the  lawful  command  of  the  brigade  to  Avhich  he 
had  been  assigned  when  the  constitution  adopted  in  the  same 
year  went  into  operation.  The  act  of  May  13th.  1847,  called 
for  a  change  in  the  relator's  district  by  expressly  separating  the 
Long  Island  counties,  by  requiring  in  effect  the  association  of 
other  territory.  But  that  act  contained  the  provision  that  the 
brigadier  general  residing  in  the  district  highest  in  rank  (with 
certain  requisites  which  it  is  unnecessary  to  specify,  as  the 
relator  confessedly  had  them,)  should  have  the  command  of  the 
brigade.  Under  this  act,  the  counties  of  Putnam  and  Rock- 
land were  added,  and  the  number  of  the  brigade  was  altered.  I 
have  already  stated  ray  impression  that  the  addition  of  territory 
to  the  relator's  original  district  did  not  require  a  new  election. 
Neither  did  the  change  in  the  number.  It  could  not  be  serious- 
ly contended  that  the  latter  change  was  any  thing  more  than 
nominal.  The  relator  was,  I  think,  lawfully  placed  in  the  com- 
mand of  the  new  brigade,  and  continued  to  hold  it  until  the 
commission  to  the  defendant  was  issued.  If  that  commission 
was  valid,  it  in  effect  removed  the  relator  from  the  office  of 
brigadier  general  of  his  brigade.  I  can  see  but  little  difference 
between  removing  an  officer  and  depriving  him  permanently 
of  his  powers.  The  one  involves  as  much  degradation  as  the 
other,  and  I  think  is  equally  prohibited  by  the  constitution. 
That  instrument  was  not  designed  to  guard  the  name  of  the 
office  simply,  and  to  leave  the  substance  unprotected :  to  retain 
tlie  husk,  while  it  abandoned  the  fruit.     The  governor  had  not 


SUFFOLK— AUGUST,  1855.  309 


The  People  v.  Scrugham. 


the  power  thus  summarily  to  remove  the  relator.  His  removal 
could  be  effected  only  by  a  resolution  of  the  senate,  ©n  the 
recommendation  of  the  governor,  or  by  the  decision  of  a  court 
martial. 

The  power  to  issue  the  commission  to  the  defendant  is  claim- 
ed for  the  governor  under  the  act  of  April  17th,  185-i.  By  the 
5th  section  of  title  2  of  that  act,  it  is  provided  that  brigadier 
generals  shall  be  chosen  by  the  field  officers  of  their  respective 
brigades.  That  does  not  alter  the  mode  prescribed  by  the  ex- 
isting constitution.  Neither  does  it,  nor  does  any  other  part  of 
the  act  purpose  to  remove  those  Avho  held  the  office  at  the  time  ; 
on  the  contr-ary,  the  9th  section  of  the  same  title  directs  that  when- 
ever the  office  of  a  brigadier  general  is  vacant,  the  commander- 
in-chief  shall  issue  an  order  for  an  election  to  fill  the  vacancy. 
The  43d  section  of  the  same  title,  which  is  supposed  to  confer 
the  power  upon  the  governor  to  commission  the  defendant  with- 
out an  election,  and  thus  to  supersede  the  relator,  js  as  follows : 
"  The  commander-in-chief  is  hereby  authorized  and  empowered 
to  appoint  and  commission  the  brigade,  regimental  and  company 
officers,  necessary  to  facilitate  the  organization  of  all  military 
districts  not  now  sufficiently  organized  to  authorize  an  election. 
All  officers  superseded  by  such  appointment  shall  become  super- 
numerary officers."  It  is  not  material  to  inquire  whether  this 
section,  if  it  referred  to  permanent  officers,  would  not  be  in 
conflict  with  the  provision  in  the  constitution  relative  to  their 
election ;  and,  as  it  does  not  appear  to  have  been  passed  by  a 
vote  of  two-thirds  of  the  members  present  in  both  houses  of  the 
legislature,  void  for  that  reason,  as  it  contains  a  qualification 
which  I  think  makes  it  inapplicable  to  this  case.  The  power 
can  be  exercised,  if  at  all,  only  in  cases  where  the  district  is 
not  sufficiently  organized  to  authorize  the  election  of  its  officers. 
The  statute  does  not  call  for  a  general  re-organization  of  the 
militia.  If  it  did,  the  provision  last  quoted  would  for  the  time 
annul  the  method  of  choosing  mulitary  officers  provided  by  the 
constitution.     If,  as  the  defendant  contends,  the  relator's  brig- 


3  J  0  Cases  m  the  supreme  couiir. 


The  People  v.  Sciugham. 


ade  had  not  received  a  full  organization,  what  was  necessar}'^  tc 
complete  it?  Its  limits  had  been  defined,  the  regiments  and 
companies  duly  designated,  and  it  was  (it  is  to  be  presumed  as 
nothing  appears  to  the  contrary)  duly  ofiicered.  Nothing  ap- 
pears to  show  any  defect  in  its  organization,  and  as  the  power 
claimed  Avas  an  innovation  upon  the  constitution,  it  should  be 
construed  strictly,  and  the  circumstances  under  which  alone  it 
could  be  exercised,  (if  it  could  be  exercised  at  all,)  should  have 
been  distinctly  stated.  The  allegation  of  an  inference  or  con- 
clusion, without  setting  forth  the  facts  on  which  it  is  founded,  is 
insufficient. 

The  existing  seventh  brigade  had  been,  as  I  have  already 
shown,  fully  organized  under  the  act  of  1847,  and  placed  under 
the  relator's  command.  The  act  of  1851  (c/t.  180,  §  1)  simply 
authorized,  or  purported  to  authorize,  the  commander-in-chief  to 
appoint  and  commission  the  officers  necessary  to  complete  the 
organization  of  all  military  districts  7iot  then  organized.  This 
could  have  no  effect  upon  the  relator's  brigade,  as  that  had  been 
ai;d  was  then  under  a  complete  and  efficient  organization.  The 
act  of  1854,  {tit.  4,  art.  1,  §  3)  expressly  provides  that  the  di- 
vision, brigade,  regimental  and  company  districts  should  con- 
tinue to  be  and  remain  as  the  military  districts  of  the  state.  They 
were  to  be  subject  to  such  alterations  or  consolidations  as  the 
commander-in-chief  should  see  fit  to  make.  It  is  unnecessary  to 
inquire  whether  any  and  if  any  what  changes  would  so  far 
effect  its  organization  as  to  render  necessary  or  sanction  an 
election  or  appointment  of  new  officers,  as  no  change  of  this 
brigade  district  has  ever  been  made.  The  provisions  in  the  act 
of  1854,  as  to  the  election  or  appointment  of  officers,  were  not, 
I  think,  intended  to  remove  the  then  existing  officers.  The 
statute  does  not  expressly  require  that,  and  an  intention  to  cre- 
ate so  great,  unnecessary,  and  impolitic  a  change,  ought  not  to 
be  lightly  inferred. 

Upon  the  whole,  it  seems  to  me  that  the  governor  was  not 
authorized  by  the  act  of  1854,  or  any  other  statute,  to  displace 


MONROE— SEPTEMBER,  1855.  3il 


Rathbone  v.  McConnell. 


^he  relator,  or  to  appoint  the  defendant.  Both  the  commission 
:o  the  defendant  and  the  general  order  accompanying  it  were 
null  and  void. 

A  peremptory  mandamus  is  awarded,  but  without  costs. 

[Suffolk  Special  Term,  August  6, 1855.     iS.  B.  Strong,  Justice.] 


Rathbone  vs.  McConnell  and  Lane. 

A  claim  of  possession  is  not  a  claim  of  title  to  land. 

In  its  most  comprehensive  sense,  tlie  term  title  embraces  the  possession,  but  not 
in  the  sense  in  which  it  is  used  in  the  section  of  the  code  giving  costs  to  the 
plaintiff  in  actions  for  the  recovery  of  real  property,  or  where  a  claim  of  title 
to  real  property  arises  on  the  pleadings,  or  comes  in  question. 

As  there  used  it  is  nothing  less  than  an  assertion  of  a  right  of  possession. 

In  au  action  to  recover  damages  for  the  diversion  of  water  from  land,  of  which 
the  plaintiff  alleges  he  is  the  owner  and  in  the  possession,  the  act  done  being 
above  his  land  and  the  injury  consequential,  it  is  not  necessary  for  the  plain- 
tiff to  prove,  ill  regard  to  his  right  or  interest,  any  thing  further  than  that  he 
.was  in  possession  of  the  premises  at  the  time  of  the  injury. 

The  party  in  possession  is  the  proper  person  to  bring  such  an  action. 

The  owner,  if  not  in  possession,  cannot  maintain  an  action,  except  for  an  injuiy 
to  his  reversionary  interest,  and  under  a  complaint  presenting  such  a  ca-se. 

A  parol  license  to  divert  water  from  a  water  course,  so  as  to  prevent  it  from 
passing  over  another's  land,  is  valid. 

Where  the  object  of  an  action  was  to  recover  damages,  sustained  in  conse- 
quence of  an  act  done  by  the  defendants  above  the  plaintiff's  land,  by  which 
the  water  of  a  water-course,  passing  over  such  land,  was  diverted  and  the 
plaintiff  deprived  of  the  use  of  it,  the  defendants  alleged  as  a  defense,  that 
the  act  was  done  with  the  leave,  license  and  ijermission  of  the  plaintiff,  it  was 
held,  that  the  answer  was  to  be  viewed  as  setting  up  a  mere  license,  and  that 
under  this  issue  the  title  to  the  land  did  not  come  in  question,  so  as  to  entitle 
the  plaintiff  to  costs  under  the  304th  section  of  the  code. 

APPEAL  by  the  defendants  from  an  order  made  at  a  sp<'^,ial 
term,  reversing  and  setting  aside  a  decision  of  the  clerk  of 
Steuben  county,  refusing  coststo  the  plaintiff  and  allowing  costs  to 
the  defendants.  The  order  appealed  from  further  directed  that 
the  plaintiff  be  allowed  his  costs  in  the  action,  and  that  the  same 


30 

311 

39 

aa 

a5h 

185 

50h  541 

21a 

466 

312  CASES  IN  THE  SUPREME  COURT. 

Rathbone  v.  McConnell. 

be  adjusted  by  the  clerk,  on  application,  and  inserted  in  the  judg 
ment  in  the  usual  manner,  as  provided  by  statute.  The  complaint 
was  ns  follows  :  "  Isaac  Rathbone,  the  plaintiiF  in  this  action, 
complains  of  Aaron  McConnell  and  Ira  Lane,  the  defendants  here- 
in, and  says  that  he  the  said  plaintiff,  for  a  long  time  past,  has 
been  and  still  is  the  owner  and  in  the  possession  of  certain  lands 
and  premises,  with  the  appurtenances,  in  the  town  of  Howard, 
in  the  county  of  Steuben,  and  used  by  him  for  forming  and  ag- 
ricultural purposes,  and  for  the  pasturing,  raising  and  keeping 
of  cows,  cattle  and  horses,  and  was  at  the  time  of  the  committing 
of  the  wrongs  and  injuries  hereinafter  mentioned,  entitled  to 
have  and  enjoy  the  benefit  and  advantage  of  the  water  of  a 
certain  stream  or  water-course  for  the  irrifrating  of  the  said 
lands  and  premises,  and  improvement  of  the  soil  thereof,  for 
the  supplying  of  his  cows,  cattle  and  horses  with  water,  and  for 
agricultural  purposes,  which,  until  the  diversion  thereof  aa 
hereinafter  mentioned,  had  run  and  flowed,  and  still  of  right 
ought  to  run  and  floAV,  upon  and  across  the  said  lands  and  prem- 
ises. That  the  said  defendants,  on  or  about  the  first  day 
of  March,  1853,  and  on  divers  days  and  times  between  that  day 
and  the  commencement  of  this  action,  in  the  town  of  Howard 
aforesaid,  wrongfully  and  unjustly  cut,  dug  and  made,  and 
caused  to  be  cut,  dug  and  made,  divers  sluices,  trenches  and 
channels  in  and  out  of  the  sides  and  banks  of  the  said  stream 
or  water-cnurse,  and  laid  pipes  or  pump-logs  in  said  stream  or 
water-course,  above  the  said  lands  and  premises  of  the  said 
plaintiff,  and  ever  since  has  kept  and  continued,  or  caused  to  be 
kept  and  continued,  the  said  sluices,  trenches  and  channels  and 
the  said  pipes  and  pump-logs,  and  thereby  during  all  the  time 
aforesaid,  unlawfully  and  wrongfully  diverted  and  turned  the 
water  of  the  said  stream  or  water-course  away  from  the  said 
lands  and  premises  of  the  said  plaintiff,  and  stopped  and  pre- 
vented and  hindered  the  water  of  the  said  stream  or  water- 
course from  running  and  flowing  along  its  usual  course  upon 
and  over  the  said  lands  and  premises  as  the  same  of  right  ought 
to  have  done,  and  otherwise  would  have  done,  and  deprived  the 
said  plaintiff  of  the  use,  benefit  and  advantage  of  the  said  wa- 


MONROE— SEPTEMBER,  1855.  3 13 


Ratlibone  v.  McConnell. 


ter  for  the  purpose  of  irrigating  his  said  lands  and  premises, 
the  improvement  of  the  soil  thereof,  and  for  the  watering  of 
his  cows,  horses  and  cattle,  and  for  all  agricultural,  farming  and 
domestic  purposes,  and  by  reason  thereof  the  water  of  the  said 
stream  or  water-course  sufficient  for  the  supplying  the  said 
plaintiff  with  Avater  for  the  purposes  aforesaid,  during  all  or 
any  part  of  the  time  aforesaid,  could  not  nor  did  not  flow 
upon  and  across  the  said  lands  and  premises  as  the  same  of 
right  ought  to  have  done  and  otherwise  would  have  done  :  and 
the  said  plaintiff  thereby,  for  want  of  sufficient  water  could  not, 
during  the  time  aforesaid,  use  and  enjoy  his  said  lands  and 
premises  or  follow  or  exercise  his  said  business  of  farming,  and 
of  raising,  pasturing  and  keeping  of  cattle,  horses  and  cows  in  so 
laroje,  extensive  and  beneficial  a  manner  as  he  mijrht  and  other- 
wise  would  have  done,  but  was  thereby  deprived  of  the  full  and 
ample  use  and  enjoyment  of  his  said  lands,  and  of  all  the  benefits, 
profits,  gains  and  advantages  which  he  otherwise  might  and 
would  have  made  and  derived  from  the  cultivation  thereof, 
and  by  carrying  on  his  said  business  thereon.  And  the  said 
plaintiff  says  that  by  reason  of  the  premises  aforesaid  he  has 
suffered  and  sustained  damage  to  the  amount  of  one  thousand 
dollars,  for  which  sum,  together  with  costs,  he  demands  judg- 
ment against  the  said  defendants." 

The  defendants,  by  their  answer,  denied  all  the  allegations 
in  the  complaint.  And  for  a  further  answer  to  so  much  of  the 
complaint  as  related  to  the  plaintiff's  being  the  owner  and  in  the 
possession  and  occupation  of  the  premises  mentioned  in  the 
complaint,  and  of  the  use  made  by  him  of  the  same,  and 
whether  he  was  entitled  to  have  and  enjoy  the  benefit  and  ad- 
vantage of  the  water  of  a  certain  stream  or  Avater-course  for 
the  irrigating  of  the  said  lands  and  premises  and  other  pur- 
poses as  Avas  alleged  in  the  said  complaint,  the  defendants 
averred  that  they  did  not  knoAV  and  had  not  any  knowledge 
or  information  thereof  sufficient  to  form  a  belief.  And  for  a 
further  ansAver  to  the  complaint  the  defendants  denied  that 
they,  "on  or  about  the  first  day  of  March,  1853,  or  at  any 
other  time,   in  the  town  of  HoAvard  aforesaid,  unlaAvfully  or 

Vol.  XX.  40 


314  CASES  IN  THE  SUPREME  COURT. 

Rathbone  v.  McConnell. 

wrongfully  diverted  and  turned  the  Avater  of  the  said  stream 
or  water-course  away  from  the  lands  and  premises  of  the  said 
plaintiff,  or  stopped,  prevented  or  hindered  the  water  of  the 
said  stream  or  water-course  from  running  and  flowing  along  its 
usual  course  upon  and  over  the  said  lands  and  premises  as  the 
same  of  right  ought  to  have  done.  And  said  defendants  deny, 
and  each  of  them  denies,  that  they  deprived  the  said  plaintiff 
of  the  use,  benefit  or  advantage  of  the  said  water  for  the  pur- 
pose of  irrigating  his  lands  and  premises,  or  for  any  other 
improvements  or  purpose  whatever.  And  for  a  further  answer 
to  the  said  complaint,  these  defendants  say,  that  in  the  year 
1853,  they,  with  other  citizens  of  the  village  of  Howard  in  the 
county  of  Steuben,  at  the  request  and  solicitation,  and  with  the 
leave,  license,  permission  and  consent  of  the  said  plaintiff,  first 
made,  given  and  granted,  made  and  constructed  an  aqueduct  to 
convey  and  by  means  of  which  they  did  conduct  and  convey  the 
water  of  a  certain  spring  to  the  said  village  of  Howard  for  the  pur- 
pose of  supplying  the  inhabitants  of  the  said  village  with  water, 
which  is  the  unlawful  and  wrongful  diversion  and  turning  of 
the  water  of  the  said  stream  or  water-course  away  from  the 
lands  and  premises  of  the  said  plaintiff,  alleged  in  the  said 
complaint." 

B.  Howell,  for  the  appellants. 

W.  Barnes,  for  the  respondent. 

Bi/  the  Court,  T.  K.  IStrong,  J.  The  plaintiff  alleges  in 
his  complaint  that  he  "  for  a  long  time  past  has  been,  and  still 
is,  the  owner  and  in  the  possession"  of  the  lands  and  premises; 
and  the  defendants  in  their  answer  put  the  allegation  in  issue, 
by  denying  it  generally,  and  also  by  averring  that  they  "have 
not  any  knowledge  or  information  thereof  sufficient  to  form  a 
belief."  In  order  to  determine  whether  a  "claim  of  title  to 
real  property  arises  on  the  pleadings"  thus  far  given,  within 
the  meaning  of  section  304  of  the  code,  it  is  important  to  con- 
fiider  what  was  necessary  to  be  proved  on  the  part  of  the  plain 


MONROE— SEPTEMBER,  1855.  3  15 

Rathbone  v.  McConnell. 

fciff  upon  the  issue,  in  order  to  maintain  the  action.  The  action, 
under  the  former  system  of  pleading,  Avould  be  termed  an  ac- 
tion on  the  case,  and  the  injury  complained  of,  a  nuisance.  The 
act  done,  by  which  the  water-course  was  diverted,  was  done 
above  the  plaintiff's  land,  and  the  injury  to  the  plaintiff  was 
consequential.  {Crablis  Real  Prop.  §  430,  433.)  It  was  ob- 
viously not  necessary  for  the  plaintiff  to  prove,  in  regard  to  his 
right  or  interest,  any  thing  further  than  that  he  was  in  posses- 
sion of  the  premises  at  the  time  of  the  injury.  In  1  Chitty's 
PI.  330,  {Phil.  ed.  o/'1828,)  it  is  stated,  in  regard  to  injuries 
to  real  property,  corporeal  or  incorporeal,  that  it  is  now  fully 
settled,  that  in  a  personal  action  against  a  wrongdoer,  for  the 
recovery  of  damages,  and  not  the  land  itself,  it  is  sufficient  to 
state  in  the  declaration,  that  the  plaintiff,  at  the  time  the  in- 
jury was  committed,  was  possessed  of  the  premises.  {See  also 
Crahh's  Real  Prop.  §  409,  410.)  The  precedents  only  allege 
possession.  (2  Chitty's  PL  788,  769.)  And  it  is  not  necessary 
to  prove  more  than  need  be  alleged.  It  is  equally  clear,  I 
think,  that  proof  of  possession  was  necessary,  and  that  without 
it  the  action  could  not  be  supported.  The  party  in  possession 
was  the  proper  person  to  bring  the  action.  The  owner,  if  not 
in  possession,  could  not  maintain  an  action,  except  for  an  injury 
to  his  reversionary  interest,  and  under  a  complaint  presenting 
such  a  case.  {Crahh's  Real  Prop.  §  433,  443.  Arch.  N.  P. 
409,  410.)  Chitty  says.  "  when  a  reversioner  sues  for  an  injury 
to  land,  &-C.,  in  possession  of  his  tenant,  his  interest  must  be 
described  accordingly."  (1  Chitty's  PI.  330.)  And  such  is 
♦■he  precedent  of  a  declaration  in  such  a  case.  (2  id.  778.)  It 
must  be  expressly  alleged  that  the  reversion  has  been  preju- 
diced. {Id.  ill  notes.)  As  the  complaint  in  this  case  is  framed, 
the  injury  to  the  possession  is  the  gist  of  the  action.  The  alle- 
gation of  ownership  does  not  at  all  enlarge  the  issue  to  be  tried. 
An  issue  upon  the  ownership  alone,  aside  from  the  question  of 
possession,  would  be  immaterial.  The  issue  formed  is  practically 
and  substantially  a  claim  of  possession  on  one  side,  denied  on 
the  other.  Undoubtedly  upon  the  issue  made,  evidence  of  title,  in 
oonnection  with  the  fact  that  the  premises  were  unoccupied,  if 


316  CASES  IN  THE  SUPREME  COURT. 

Rathbone  v.  McConnell. 

such  was  the  case,  was  competent  for  the  plaintiff,  with  t  view 
to  prove  a  constructive  possession,  which  would  have  been  suffi- 
cient. But  such  evidence  would  have  been  equally  admissible 
if  possessiou  only  had  been  alleged.  Had  it  appeared  on  the 
trial  that  the  premises  were  vacant,  and  the  plaintiff  had  given 
evidence  of  title,  to  prove  a  constructive  possession,  the  case 
would  have  been  one  of  a  claim  of  title  arising  on  the  trial ;  but 
it  will  not  be  assumed  upon  the  pleadings,  in  the  place  of  an 
allegation  of  possession,  that  the  premises  were  vacant,  and  that 
proof  of  title  was  necessary.  It  will  be  intended  by  the  allega- 
tion of  possession,  that  the  plaintiff"  was  in  actual  possession. 
A  claim  of  possession  is  not  a  claim  of  title.  In  its  most  com- 
prehensive sense,  the  term  title  embraces  the  possession,  but 
not  in  the  sense  in  which  it  is  used  in  the  provision  under  con- 
sideration. As  there  used  it  is  nothing  less  than  an  assertion 
of  a  right  of  possession.  {Broivn  v.  Majors,  7  Wend.  495. 
JJ]hle  V.  Qitackenboss,  6  Hill,  587.) 

If  under  the  liberal  system  of  pleading  of  the  code,  the  plain- 
tiff might,  under  this  complaint,  recover  as  a  reversioner  for  an 
injury  to  his  reversionary  interest,  he  will  not,  at  least,  looking 
at  the  pleadings  alone,  be  regarded  as  making  any  such  claim. 

It  is  further  alleged  in  the  complaint,  that  the  plaintiff  was 
"  entitled  to  have  and  enjoy  the  benefits  and  advantages  of  the 
Avater  "  of  the  stream  or  water-course  across  his  land  ;  and  this 
allegation  is  denied  in  the  answer.  This  right  is  not  averred, 
in  terms,  to  be  an  incident  to  the  land,  but  upon  the  case,  as 
stated  in  the  complaint,  it  is  prima  facie  an  appurtenant  to  the 
nremises.  It  would  be  supported  by  proof  of  possession  alone. 
And  if  the  issue  is  broad  enough  to  admit  evidence  of  a  riorht 
independent  of  the  land,  derived  from  an  agreement  or  license, 
I  think  it  must  not  be  understood  from  the  complaint  alone, 
that  such  a  right  was  intended  to  be  averred.  The  plaintiff"  wilJ 
be  regarded  as  intending  to  claim  the  use  of  the  water  as  an 
appurtenance.  In  this  view  the  right  is  involved  in  the  issue 
as  to  the  possession.  And  no  claim  of  title  to  real  property 
arises  on  the  pleadings  relating  to  it,  for  the  reason  already 
Stated,  that  a  claim  of  possession  is  not  a  claim  of  title. 


MONROE— SEPTEMBER,  1855.  317 


Ratbbone  v.  McConnell. 


The  defendants,  in  the  answer,  in  addition  to  denying  the 
complaint,  set  up  as  an  affirmative  defense,  that  they,  Avith 
others,  "at  the  request  and  solicitation,  and  with  the  leave, 
license,  permission  and  consent  of  the  plaintiff,  first  made,  giv- 
en and  granted,  made  and  constructed  an  aqueduct  to  convey, 
and  by  means  of  which  they  did  conduct  and  convey,  the  wa- 
ter" to  a  village  named,  for  the  purpose  of  supplying  the  inhab- 
itants with  water.  This  defense  must  be  deemed  controverted 
under  section  168  of  the  code.  It  was  held  by  the  learned  jus- 
tice at  special  term,  that  this  issue  raises  a  question  of  title  to 
real  property,  for  the  reason  that  the  defendants  set  up  a  per- 
manent right  derived  by  deed  from  the  plaintiff  to  the  water  of 
this  water-course,  which  right  was  part  of  the  plaintiff's  free- 
hold. If  this  is  a  correct  construction  of  the  answer,  the  con- 
clusion drawn  from  it  is  right ;  but  is  this  a  fair  and  just 
construction  ?  The  object  of  the  action  is  to  recover  damages 
sustained  in  consequence  of  an  act  done  by  the  defendants 
above  and  off  the  plaintiff's  land,  by  which  the  water  of  11 
water-course,  passing  over  the  plaintiff's  land  has  been  diverted, 
and  the  plaintiff  has  been  deprived  of  the  use  of  it.  It  is  set 
up  in  defense  "that  the  act  was  done  at  the  request  and  solicitation, 
and  with  the  leave,  license,  permission  and  consent  of  the  plain- 
tiff, first  made,  given  and  granted.  This  permission  is  expressly 
designated  by  the  defendants  as  a  license,  and  the  answer  is  in 
the  ordinary  form  of  a  plea  and  answer  of  license.  (3  Chitty's 
PI.  1106.)  The  words,  "given  and  granted,"  do  not  enlarge 
the  answer;  it  is  the  ''leave,  license,  permission  and  consent," 
and  nothing  more,  that  were  granted.  If  the  matter  of  the  de- 
fense is  available  as  a  license,  the  defendants  having  named 
and  presented  it  as  such,  that  should  be  regarded  as  its 
scope  and  operation.  That  it  is  valid  as  a  license  is,  I  think, 
well  settled  by  authority.  In  Pierreponi  v.  Barnard,  in  the 
court  of  appeals  of  this  state,  (2  iSelden,  279,)  it  was  held,  that 
d  parol  license  by  the  owner  of  land  to  cut  and  carry  away 
standing  timber,  fully  executed  before  revocation,  was  a  com- 
plete protection  for  what  was  done  under  it.  The  principle  of 
that  case  is  directly  in    point.      The  trees  were    as    much  a 


318  CASES  IN  THE  SUPREME  COURT.  . 


Rathbone  v.  McConnell. 


part  of  the  freehold  as  the  right  to  the  use  of  the  water 
[Green  v.  Armstrong.  1  Denio,  550.)  The  diversion  of  the 
latter  might  be  justified  under  a  license,  as  well  as  the  cutting 
of  the  former.  Liggins  v.  Inge,  (7  Bingliain.  682  ;  20  Eng, 
Com.  L.  Rep.  287.)  also  goes  directly  in  support  of  the  validity 
of  the  license.  It  was  an  action  on  the  case  for  wrongfully  con- 
tinuing the  diversion  of  water  from  the  plaintiff's  mill,  and  the 
facts  and  question  to  be  decided,  as  briefly  stated  in  the  opinion 
of  Tindall,  Ch.  J.,  were  these:  "It  appeared  in  evidence  be- 
fore the  arbitrator,  that  the  bank  of  the  river  Avhich  had  been 
cut  down,  was  the  soil  of  the  defendants  ;  and  that  the  same 
had  been  cut  down  and  lowered,  and  the  weir  erected,  and  the 
water  thereby  diverted  by  them,  the  defendants,  and  at  their  ex- 
pense, in  the  year  1822,  under  a  parol  license  to  them  given 
for  that  purpose  by  the  plaintiff's  father,  the  then  OAvner  of  the 
mill ;  and  that  in  the  year  1827  the  plaintiff's  father  repre- 
sented to  the  defendants  that  the  lowering  and  cutting  down 
the  banks  Avas  injurious  to  him  in  the  enjoyinent  of  his  mill, 
and  had  called  upon  them  to  restore  the  land  to  its  former 
state  and  condition ;  with  which  requisition  the  defendants 
had  refused  to  comply.  The  question  therefore  is,  whether 
such  non-compliance,  and  the  keeping  of  the  weir  in  the  same 
state  after,  and  notwithstanding  the  countermand  of  the  license, 
is  such  a  wrong  done  on  the  part  of  the  defendants  as  to 
make  them  liable  in  this  action."  After  stating  the  argu- 
ment on  the  part  of  the  plaintiff,  and  some  remarks  in  refer- 
ence to  it,  the  chief  justice  observes :  "  But  Ave  think  the 
operation  and  effect  of  the  license,  after  it  has  been  completely 
executed  by  the  defendants,  is  sufficient,  Avithout  holding  it  to 
convey  any  interest  in  the  water,  to  relieve  them  from  the 
burthen  of  restoring  to  its  former  state  what  has  been  done 
under  the  license,  although  such  license  is  countermanded,  and 
consequently  that  they  are  not  liable  as  Avrongdoers  for  persist- 
ing in  such  refusal."  The  vieAvs  of  the  court  are  given  by 
the  chief  justice  at  considerable  length,  and  it  is  also  held, 
that  the  license,  after  it  was  executed,  was  not  countermand- 
able.     That  was  much  further  than  it  is  necessary  to  go  in  this 


MONROE— SEPTEMBER,  1855  319 


Rathbone  v.  McConnell. 


3a se.  That  case  is  referred  to  with  approbation  in  Smith  v. 
The  Birmingham  and  Staffordshire  Gas  Light  Co.  (1  Add. 
tj-  Fd.  526 ;  28  Eng.  Com.  Law.  Rep.  140  ;)  and  in  Wood  v. 
Manley,  (11  Adol.  S^  El.  34 ;  39  Eng.  Com.  L.  Rep.  19.) 

The  case  of  Otis  v.  Hall,  (3  Joh?i.  450,)  decides  that  such 
a  license  is  valid,  and  also  that  setting  it  up  does  not  raise  a 
question  of  title.  The  action  was  a  special  action  on  the  case, 
for  overflowing  the  plaintiff'-s  land,  by  means  of  a  mill-dam 
erected  by  the  defendant  on  his  own  land.  On  the  trial  the  de- 
fendant proved  that  he  had  permission  to  erect  the  dam,  and  over- 
flow the  plaintiff's  land  if  necessary  for  the  use  of  the  mill.  On  a 
motion  by  the  plaintiff  for  full  costs,  under  a  statute  then  ex- 
isting, on  the  ground  that  the  title  to  lands  came  in  question, 
the  court,  after  stating  the  question,  and  expressing  the  opin- 
ion that  the  freehold  or  title  did  not  come  in  question,  within 
the  purview  of  the  statute,  say :  "  The  case  bears  no  anal- 
ogy to  that  of  Heaton  v.  Ferris,  (1  John.  146.)  Here  was  no 
claim  of  a  right  of  entry  into  the  plaintiff's  land,  nor  of  any 
direct  use  or  enjoyment  of  it.  The  defendant  merely  sets  up  a 
right  to  use  his  own  land  in  the  manner  he  has  done,  by 
erecting  the  dam  ;  that  any  consequential  injury  to  the  plain- 
tiff was  waived  by  his  express  license  for  that  purpose ;  and 
that  it  was  a  mere  damnum  absque  injuria,  for  which  the 
plaintiff  had  no  right  of  action.  The  statute  only  applies  t6 
cases  where  a  claim  or  question  to  the  direct  use  by  entry 
on  another's  land  comes  in  controversy.  This  and  many  other 
cases  of  consequential  injuries  as  for  nuisances  erected  on  the 
defendant's  own  land,  do  not  in  any  manner  bring  the  title  in 
question.  Nor  does  the  setting  up  a  leave  or  license  by  the 
plaintiff  raise  a  question  as  to  the  title,  or  give  any  right  or 
interest  in  the  plaintiff's  land."  If  a  license  to  flow  land  with 
water  is  valid,  it  would  seem  that  a  license  justifying  the  al- 
leged wrongful  diversion  of  water  from  it  must  be,  at  least  until 
revoked.  The  case  of  Chandler  v.  Duane,  (10  Wend.  563,) 
was  a  motion  for  costs  to  the  defendants,  and  similar  to  that 
last  cited.  Sutherland,  J.,  says,  "the  action  and  the  ground  of 
iefense,  and  all  the  circumstances  in  the  case,  were  precisely 


320  CASES  11^  THE  SUPREME  COURT. 

Rathbone  v.  McConnell. 

the  same  as  in  this,"  and  the  same  principle  was  applied. 
(*S'ee  also  Clinton  v.  McKenzie,  5  Strohhart.  36.) 

Viewing  the  portion  of  the  answer  in  justification  of  the  act 
complained  of  in  the  complaint,  as  setting  up  a  mere  license, 
it  is  very  plain  that  no  question  of  title  was  raised  by  putting 
the  same  in  issue.  [Mumford  v.  Whitney,  15  Wend.  380. 
Wickham  V.  Seely,  18  id.  649.) 

The  case  of  Powell  v.  Rust,  (8  Barb.  567,)  is  entirely  un- 
like the  present.  The  decision  in  that  case,  that  a  claim  of 
title  arose  on  the  pleadings,  was  placed  upon  the  ground  that 
Rust  claimed,  by  virtue  of  an  agreement  with  the  plaintiff,  the 
property  in,  and  the  right  to  enter  with  teams  and  take  away 
certain  growing  trees  and  shrubs,  which  were  part  of  the  land. 
Here,  no  transfer  to  the  defendant  of  a  right  to  the  use  of 
the  water  is  asserted,  but  only  a  permission  to  do  an  act  by 
which  the  diversion  of  the  water  was  effected.  If  the  license 
may  not  be  revoked,  it  is  not  because  it  conferred  any  interest 
in  the  use  of  the  water  upon  the  defendant,  but  because  it 
operated  as  a  yielding  up  and  relinquishment  of  the  water  di- 
verted.    (Liggin.'i  V.  Inge,  above  cited.) 

Mumford  v.  Whitney,  above  referred  to,  is  the  case  of  a 
claim  by  the  defendant  to  a  permanent  interest  in  the  plain- 
tiff's land.  Davis  v.  Townsend,  (10  Barb.  333,)  contains  only 
the  same  doctrine. 

For  the  foregoing  reasons,  I  am  of  opinion  that  no  claim  of 
title  to  real  property  arises  on  the  pleadings  in  this  case  ;  hence 
the  decision  at  special  term  should  be  reversed. 

[Monroe  General  Term,  September  3,  1855.  Selden,  ,'ohnson  and  T.  R 
Strong   Justices.] 


MONROE— SEPTEMBER,  1855.  321 


The  Trustees  of  the  Theological  Seminary  of  Auburn 
vs.  Almeron  H.  Cole  adm'r  (fee.  of  Chloe  Hyde,  deceased. 

Where  there  is  a  bequest  of  the  whole  residue  of  the  testator's  estate,  after  pay- 
ment of  debts  and  legacies  to  one  person  for  life,  limited  as  to  part,  upon  a 
contingency,  to  the  use  thereof  for  life,  with  a  valid  gift  over  of  that  part,  upon 
the  happening  of  the  contingency,  and  as  to  the  rest,  absolute  of  the  entiie 
estate,  as  to  the  part  of  the  estate  to  which  the  contingency  relates,  the  income 
only  can  be  paid  to  the  residuary  legatee ;  but  as  to  that  portion  of  tho  estate 
respecting  which  the  bequest  is  absolute,  the  principal  must  be  paid. 

Tho  gift  over  does  not  attach  to'  the  entire  residuary  estate,  so  as  to  render  tho 
whole  a  security  for  its  payment,  but  the  executor  may,  as  to  the  legatee,  set 
apart  a  principal  sum  sufficient  to  discharge  the  gift,  and  proceed  to  satisfy 
the  other  legacies. 

And  the  residuary,  or  any  other  legatee,  who  has  been  paid  his  legacy,  will  not, 
in  case  of  a  subsequent  deficiency  of  assets  to  pay  the  gift,  from  the  waste  of 
the  executor,  be  obliged,  for  that  reason,  to  refund  any  part  of  what  he  has 
received. 

Tlie  residuary  legatee  is  not  entitled,  before  the  happening  of  the  contingency,  to 
demand  of  the  executor,  on  account  of  the  legacy  to  him,  any  thing  fuilher 
than  the  balance  of  such  legacy,  after  deducting  a  sum  sufficient  to  pay  the 
contingent  gift  when  it  shall  become  payable. 

The  administrator  of  the  residuary  legatee  is  not  liable  to  the  contingent  legatee^ 
for  the  payment  of  the  contingent  gift,  after  the  contingency  has  occurred, 
without  at  least  an  allegation,  and  proof,  that  his  intestate,  or  himself,  has  re- 
ceived more  than  the  intestate  was  entitled  to  receive,  and  of  such  other 
circumstances  as  would  clothe  him  with  the  character  of  a  trustee  for  the 
plaintiff  as  to  the  excess. 

ACTION  to  recover  the  two  last  installments,  of  $2500 
each,  of  a  legacy  of  $10,000,  claimed  to  have  been  given 
by  David  Hyde,  of  Auburn,  to  the  plaintiffs,  by  his  will  executed 
April  10,  1824,  and  which  took  effect  by  his  death  on  the  12th 
day  of  April  in  the  same  year.  He  left  real  estate  of  the  value 
of  $12,000,  and  personal  of  the  value  of  $20,000.  The  clause 
of  the  will  under  which  the  claim  was  made,  and  which  was  pre- 
ceded by  certain  specific  bequests,  was  as  follows  : 

"  I  give,  devise  and  bequeath  all  the  rest  and  residue  of  my 
estate,  both  real  and  personal,  which  shall  remain  after  payment 
of  my  Qebts,  funeral  charges  and  legacies  above  mentioned,  unto 
my  daughter,  Chloe  Hyde,  her  heirs  and  assigns  forever :  and 
if  she  shonld  die  without  lawfid  issue,  then  I  give  and  bequeath 

Vol.  XX.  41 


322  CASES  IN  THE  SUPREME  COURT. 

Trustees  of  Theological  Seminarj-  of  Auburn  v.  Cole. 
— 1 

unto  the  Theological  Seminary,  of  Auburn,  in  the  state  of  New 
York,  the  sum  of  ten  thousand  dollars  for  the  purpose  of  endow- 
ing a  professorship  in  said  seminary,  to  be  paid  to  the  said  trus- 
tees in  four  equal  annual  pay  merits,  after  the  death  of  the  said 
Chloe.  I  give  the  custody,  tuition  and  guardianship  of  the 
person  of  my  said  daughter  Chloe  to  my  brother-in-law,  Daniel 
Kellogg,  Esq.  until  she  shall  attain  the  age  of  twenty-one  years  ; 
and  all  or  such  part  of  my  said  estate  as  he  shall  deem  neces- 
sary shall  be  applied  for  her  maintenance,  education  and  sup- 
port.*' Daniel  Kellogg  Avas  named  as  executor,  with  power  to 
sell  the  real  estate,  and  received  letters  testamentary  in  May, 
1824.  Chloe  Hyde,  the  only  daughter  of  the  testator,  became 
21  years  of  age  August  16th,  1837,  and  died  on  the  21st  May, 

1850,  intestate  and  without  issue,  and  the  defendant,  in  July, 

1851,  received  letters  testamentary  upon  her  estate.  The  ex- 
ecutor paid  her  expenses  during  his  life,  and  for  some  part  of  the 
time  she  resided  in  his  family.  He  sold  most  of  the  real  estate 
during  his  life,  and  the  proceeds  were  received  in  part  by  him, 
and  the  residue  by  the  executors  of  his  will.  He  did  not  keep 
the  assets  of  the  estate  separate  from  his  private  estate,  but  kept 
an  account  of  his  receipts  and  payments,  making  himself  debtor 
for  all  the  receipts,  and  crediting  himself  with  all  payments. 
Daniel  Kellogg  died  May  4, 1836,  and  at  his  death  all  the  assets 
of  the  estate  of  David  Hyde,  except  what  he  had  expended  in  the 
settlement  of  the  estate,  the  payment  of  legacies,  and  the  main- 
tenance and  education  of  Chloe  Hyde,  "remained  absorbed  in 
his  estate,  and  passed  as  such  into  the  hands  of  the  executors 
of  his  will."  Chloe  Hyde  never  received  into  her  possession,  or 
exercised  any  actual  control  over,  any  part  of  the  assets, 
beyond  the  sum  required  for  her  support,  until  August  1,1849, 
when  the  executors  of  the  will  of  Daniel  Kellogg  paid  to  her,  by 
the  conveyance  of  real  estate,  $47,000  ;  and  they  subsequently 
paid  her  small  sums  for  her  support,  until  her  death.  She  did 
not  receive,  during  her  life,  so  much  in  the  aggregate  as  was 
due  to  her  for  the  interest  and  income  of  the  estate.  On  the 
Ist  of  January,  1852,  the  defendant  entered  into  a  written 
agreement  with  the  executors  of  the  will  of  Daniel  Kellogg,  by 


AlU^- ROE— SEPTEMBER,  1855.  323 

Trustees  of  Theological  Seminary  of  Auburn  v.  Cole 

which  the  sum  due  to  him  as  administrator,  from  said  executors, 
wa3  fixed  at  ^50,000 ;  on  account  of  which  they  then  paid  him 
in  bonds  and  mortgages  $31,775.27,  and  on  the  1st  of  July, 
1853,  in  lands,  .$12,000,  and  the  balance  remains  unpaid. 

The  jury  found  a  special  verdict  containing  the  above  and 
other  facts  ;  upon  which  the  justice  who  tried  the  cause,  ordered 
a  judgment  for  the  plaintiffs,  for  the  amount  claimed,  Avith  in- 
terest. For  further  facts  see  the  same  case,  when  formerly  be- 
fore the  court,  18  Barb.  360. 

John  Porter,, for  the  plaintiffs.  I.  The  legacy  given  by  Da- 
vid Hyde's  will  to  the  plaintiffs,  is  good  and  valid  in  law  as  an 
executory  bequest.  The  provision  in  the  will  specifying  the 
times  of  payment,  is  conclusive  to  show  that  the  testator  did 
not,  by  the  expression,  "  dying  without  lawful  issue,"  intend  any 
other  than  issue  living  at  the  death  of  Chloe  Hyde.  (4  Kenfs 
Com.  282.  Hill  v.  Hill,  4  Barb.  419.  Jackson  v.  Siaats,  11 
John.  337.  Fosdick  v.  Cornell,  1  id.  440.  Moffat  v.  Strong, 
10  id.  12.) 

II.  The  bequest  to  Chloe  of  all  the  rest  and  residue  of  his 
real  and  personal  estate,  did  not,  so  far  as  the  amount  of  the 
legacy  in  question  is  concerned,  give  her  an  absolute  property 
in  the  same,  nor  a  right  to  dispose  of  the  same  in  her  lifetime. 
Slie  only  took  a  conditional  interest  therein,  depending  on  the 
event  of  her  leaving  issue  at  her  death,  to  determine  whether  it 
was  absolute  or  not.  {Jackson  v.  Bull,  10  John.  19.  Hill  v. 
UiU,  4  Barb.  419.  Helmer  v.  Shoemaker,  22  Wend.  138. 
I.ott  V.  Wycknff,  1  Barb.  572,  576.     2  Kenfs  Com.  270.) 

III.  The  guardian  of  Chloe  had  the  power  to  apply  to  her 
maintenance,  education  and  support,  only  so  much  of  the  estate 
as  he  should  deem  necessary  for  that  purpose  ;  this  did  not  give 
him  the  absolute  control  over  all  the  remainder  devised  and  be- 
queathed to  Chloe  by  the  will.  It  is  only  when  absolute  own- 
ership, and  right  of  disposal  of  property,  is  given  by  the  will, 
that  the  limitation  over  is  held  to  be  void,  as  inconsistent  with 
the  executory  devise.  {The  Attorney  Gen.  v.  Hall,  Fitzg. 
314.     Ide  v.  Ide,  5  Tyng,  500.     Jackson  v.  Bull,  10  John.  19. 


V 
324  CASES  IN  THE  SUPREME  COURT. 

Trustees  of  Theological  Semiuary  of  Auburn  v.  Cole. 

Livingston  r.  Delancy,  13  id.  537.  Jackson  v.  Robins,  15  id. 
169.)  Again,  the  power  of  disposal  of  any  portion  was  given  to 
the  guardian,  and  not  to  Chloe.  the  cestui  que  trust.  And  it  Mas 
given  for  a  particular,  defined  and  limited  object,  and  to  be  lim- 
ited to  the  necessity  of  the  case.  To  contend  that  the  guardian, 
under  this  clause,  had  the  absolute  power  of  disposal  of  the  whole 
property,  would  be  a  manifest  violation  of  the  intention  of  the 
testator,  as  evinced  by  the  whole  will. 

IV.  Daniel  Kellogg,  the  testamentary  guardian  of  Chloe, 
though  spoken  of  in  the  will  as  only  guardian  of  her  person,  be- 
came, as  such,  guardian  of  her  estate  also ;  and  it  became  his 
duty,  imposed  by  statute,  to  take  the  management  of  her  estate 
as  such  guardian.  (2  R.  S.  150,  §§  1,  2,  3.)  Kellogg,  being 
both  executor  and  guardian,  the  law  will  presume,  after  a  rea- 
sonable time  has  passed  for  settling  all  claims  against  the  estate, 
that  he  held  the  funds  in  his  hands  as  the  guardian  of  Chloe 
{Karr  v.  Karr,  6  Dana,  3.) 

V.  When  Chloe  became  21  3^ears  of  age,  she  was  not  only  en- 
titled to  the  whole  fund  and  its  increase,  except  such  parts 
tliereof  as  had  been  paid  out  according  to  the  directions  of  the 
will ;  but  she  had  the  legal  possession  of  it — the  actual  posses- 
sion of  the  executors  of  Kellogg  was  her  possession.  If  the 
fund  existed  in  the  shape  of  securities  for  money,  they  held  them 
for  her  use  ;  if  in  the  shape  of  a  debt  due  from  the  estate  of 
Kellogg,  the  legal  possession  was  in  her. 

VI.  There  is  no  foundation  for  the  claim  set  up  in  the  answer, 
that  the  legacy  given  to  the  plaintiifs  was  payable,  if  at  all,  out 
of  the  specific,  original  fund  left  by  the  testator  at  his  decease, 
to  be  found  either  in  the  will  or  in  law.  After  Chloe  became 
of  age,  she  held  the  whole  fund,  with  its  increase,  in  her  own 
right,  subject  however,  in  the  contingency  that  has  occurred,  to 
pay  from  her  estate  the  plaintiff's  legacy.  It  was  a  contingent 
trust  in  her. 

VIL  The  defendant,  as  administrator,  became  entitled  to  all 
the  personal  property  of  Chloe,  in  whatever  shape  it  existed,  in 
money,  stock,  securities  for  money,  debts,  or  in  any  other  way ; 
and  his  responsibility  to  answer  for  any  claims  against  the  es- 


MONROE— SEPTEMBER,  1855.  325 


Trusties  of  Theological  Seminary  of  Auburn  v.  Cole. 

tate  of  Chloe  can  never  be  discharged,  while  any  assets  remain 
that  may  become  available.  (2  R.  S.  82,  §  6.  Wooden  v.  Bag- 
hy.  13  Wend.  456.  Beecher  v.  Grouse^  19  id.  306.  Jenkins 
V.  Freye7\  4  Paige,  47.) 

VIIT.  The  plaintiffs  are  authorized  to  receive  and  hold  the 
legacy  in  question  by  their  act  of  incorporation,  and  the  laws  of 
the  state.  {Sess.  Laws  of  1820,  p.  197  ;  of  1840,  p.  267  ;  of 
1841,  p.  245.  Yates  v.  Yates,  9  Barb.  324.  iiTin^  v.  i2?m- 
dle,  15  ?t/.  139.) 

iy.  R.  Selden,  for  the  defendant.  I.  Chloe  Hyde,  under  the  will 
of  her  father,  took  an  estate  in  fee  in  the  lands,  and  an  absolute 
estate  in  the  personal  property.  The  gift  over,  of  $10,000.  to 
the  plaintiffs,  is  therefore  void.  1.  The  governing  principle 
in  the  construction  of  a  will,  as  of  every  other  instrument,  is, 
that  the  intention  of  the  maker  is  to  be  ascertained,  and  effect 
given  to  it  so  far  as  is  consistent  with  the  rules  of  law.  2.  If 
that  intention,  when  ascertained,  is  unlawful,  it  is  as  much 
the  duty  of  courts  to  defeat  it,  as  it  is  to  effectuate  it  when  lawful. 
(11  Wend.  294,  299,  301.  1  Sa7idf  Ch.  274.)  3.  It  was  the 
intention  of  the  testator  here  to  give  to  his  daughter  Chloe, 
an  estate  in  fee  in  his  lands,  and  a  like  absolute  estate  in  his 
personal  property,  subject  to  be  defeated  on  her  death,  as  to 
$10,000  (if  so  much  remained  unexpended  by  her,)  in  case  she 
died  without  issue  living  at  her  decease  ;  the  $10,000  to  be  in 
that  event  paid  to  the  plaintiff.  To  determine  the  question  of 
intention,  I  insist :  (1.)  That  the  will  in  the  clearest  terms  dis- 
poses of  the  testator's  entire  estate,  real  and  personal,  and 
shows  that  it  was  not  his  intention  to  die  intestate  with  regard 
to  any  part  of  it.  The  expression  "  all  the  rest  and  residiie 
of  my  estate,  both 'real  and  personal,"  without  the  added  words, 
of  inheritance,  would  have  given  to  the  devisee  an  estate  in  fee. 
(6  John.  191,  and  cases  cited  in  notes  c  and  d :  16  id.  555,  Jones 
and  Van  Buren,  arguendo ;  Id.  587,  Kent,  Chancellor ; 
11  id.  374,  Yates,  J.  ;  1  T.  R.  411.)  But  the  testator,  to  re- 
move all  possible  doubt,  not  only  gave  to  Chloe  "  the  rest  and  res- 
idue of  all  his  estate,"  but  gave  it  to  her,  '■'■her  heirs  and  assigns 


326  CASES  IN  THE  SUPREME  COURT. 

Trustees  of  Theological  Seminary  of  Auburn  v.  Cole. 

forever."  (2.)  The  plaintiff's  construction  must  reduce  the 
interest  of  the  devisee  in  the  lands,  contrary  to  the  express 
terras  of  the  will,  from  a  fee  to  a  life  estate,  and  her  interest  in 
the  personal  estate  to  a  life  use  of  it  only,  and  would  make  the 
testator  die  intestate  as  to  the  remainder  of  his  estate,  after 
the  termination  of  the  life  interest,  and  the  payment  of  the 
plaintiff's  legacy.  (3.)  Not  only  is  the  entire  estate  given  to 
Chloe  and  her  heirs,  but  the  express  power  of  disposition  of  it 
is  given  to  her,  by  the  most  appropriate  and  comprehensive 
of  legal  terms,  for  that  purpose,  viz  :  to  "  her  heirs  and  assig7i.is 
forever.''  (4.)  If  only  a  life  interest  was  given  to  the  daugh- 
ter, there  was  at  least  a  possibility  that  the  income  might  not 
be  suflBcient  for  her  education  and  support,  and  that  possibility 
was  in  the  mind  of  the  testator  when  he  gave  to  her  guardian 
poAver  to  apply  "  all  or  an}-  part"  of  the  capital  of  the  estate  to 
that  object.  That  guardianship  could  only  continue  till  she 
arrived  at  the  age  of  21.  Did  the  testator,  intend  that  after 
arriving  at  maturity,  his  daughter  should  have  no  power  over 
the  body  of  the  estate  which  he  left  to  provide  for  her  wants, 
should  it  be  necessary?  Could  she  appropriate  no  part  of  it, 
in  case  of  marriage  ?  Such  a  construction  as  is  claimed  by  the 
plaintiff  would  both  contradict  the  letter  of  the  gift  to  her,  and 
do  violence  to  the  whole  spirit  of  the  ivill.  (5.)  I  infer  from 
the  case  already  decided  upon  this  will  that  the  plaintiff's  coun- 
sel and  the  court  assume  that  Chloe  Hyde  took  an  absolute 
estate  in  all  which  was  given  to  her,  except  the  $10,000  claim- 
ed by  the  plaintiff;  and  as  to  that,  that  she  took  "only  the  use, 
unless  she  should  have  issue  living  at  her  death,  and  that  if  she 
should  not  have  such  issue,  the  same  should  go  to  the  plaintiffs." 
(18  Barb.  375,  383,  point  4:,  384-5.)  I  think  there  can  be  no 
distinction  in  her  claim  to  the  different  parts,  at  least,  of  the 
personal  estate.  If  the  plaintiffs'  claim  is  valid,  it  extended. 
as  ai^ainst  her.  to  every  part  of  that  estate,  reducing  her 
right  in  the  whole  to  the  mere  use  of  it  for  her  life,  the  title 
being  in  the  executor,  in  trust  for  the  plaintiffs,  to  the  extent 
of  $10,000,  and  for  the  next  of  kin,  not  of  Chloe  Hyde,  but  of 
David  Hyde,  as  to  the   surplus,  if  any.     {Jeremy^s  Eq.  Jur 


MONROE— SEPTEMBER,  1855.  327 

Trustees  of  Theological  Seminary  of  Auburn  v.  Cole. 

104.  1  P.  Wms.  550,  and  note  1.  2  Store's  Eq.  Juris. 
§  1067.  1  id.  §§  540,  596,  606,  note  1.)  This  result  is  in  con- 
flict with  the  letter^  and  the  whole  scope  and  spirit  of  the  will. 
For  tliese  reasons,  it  is  insisted  that  the  testator  intended 
what  he  said  when  he  gave  the  entire  residue  of  his  estate^ 
not  before  disposed  of,  to  his  "  daughter,  Chloe  Hyde,  her  heirs 
and  assigns  forever.^''  4.  An  absolute  disposition  having  been 
previously  made  by  the  will  of  the  whole  property,  the  gift 
over  to  the  plaintiffs  on  the  death  of  Chloe  Hyde  without  issue 
was  void.  (1.)  The  legacy  was  never  charged  on  the  real 
estate,  and  the  plaintiffs  could  never  reach  that  or  its  proceeds, 
whether  their  legacy  was  valid  -or  not.  {Lupton  v.  Lupton, 
2  John.  Ch.  614,  623.  /Sicift  v.  Edsmi,  5  Conn.  R.  531,  536. 
Gridley  v.  Andrews,  8  id.  15.  2  Story^s  Eq.  Jur.  h  1247, 
note  2,  p.  703,  Qth  ed.)  The  power  of  sale  given  to  the  ex- 
ecutor, does  not  (until  exerted)  affect  the  title,  nor  Avork  a-n 
equitable  conversion  of  the  real  into  personal  estate.  It  re- 
quires a  positive  direction  to  produce  that  result.  (^Leigh  4* 
Dalzell  on  Equitable  Conversion,  p.  15.)  (2.)  The  testator 
having  given  his  personal  property  to  his  daughter,  with  power 
to  dispose  of  it  during  her  life,  the  gift  over  was  void.  (^Jack- 
son v.  Bull,  10  John.  19.  Jackson  v.  Delancy,  13  id.  537. 
Jackson  v.  Robins,  16  id.  587,  588,  589.  McDonald  v.  Wal- 
grove,  1  Sandf.  Ch.  R.  274.  Ross  v.  Ross,  1  Jac.  c5"  Walk. 
154,  158,  note  a.  Child  v.  Baily,  Cro.  Jac.  459.  Pater- 
son  V.  Ellis,  11  Wend.  276.  Ide  v.  Ide,  5  3rass.  R.  500.) 
"If  the  absolute  property  or  right  of  disposal  is  given  to  the 
first  taker,  he  may  defeat  the  devise  over,  and  therefore  it  is 
void."  {Per  Savage,  C.  J,  11  Wend.  277.)  The  words  limit- 
ing the  gift  over,  to  what  the  first  taker  should  "  die  possessed 
of,"  and  other  similar  expressions  found  in  a  number  of  cases, 
are  only  effectual  to  defeat  such  gift  because  they  "  imply  a 
power  of  alienation  by  the  devisee."  (10  John.  20.)  An  express 
Dower  of  alienation  expressed  by  a  gift  to  one  his  "  heirs  and 
xssigjis  forever,"  must  be  as  effectuaJ  as  an  implied  power  for 
that  purpose.  (3.)  Even  if  Chloe  Hyde  had  not  power  to 
dispose  of  the  estate,  such  power  was  given  to  the  executor  for 


328  CASES  IN  THE  SUPREME  COURT. 


Trustees  of  Theological  Seminary  of  Auburn  v.  Cole. 


her  benefit,  and  rnust  have  the  same  effect  upon  the  gift  over 
as  though  it  were  conferred  upon  her.  "  It  is  essential  to  the 
validity  of  an  executory  devise,  that  it  cannot  be  defeated  by 
the  first  taker."  {Paterson  v.  Ellis,  11  Wend.  277.  Lewis 
on  Perpetuities,  135.  8  Coke,  96,  a.)  "The  same  doctrine 
that  executory  interests  cannot  be  barred  by  the  act  of  the  first 
de\isec  extends  to  executory  dispositions  of  personal  chattels." 
(8  Coke,  96,  a  ;  note  D.  Eraser'' s  ed.)  (4.)  The  bequest  to  the 
plaintiffs,  being  not  specific,  but  general,  and  if  it  affects  at  all 
the  personal  estate  given  to  Chloe  Hyde,  touching  it  only  in 
part,  cannot  have  the  effect  to  defeat  the  othericise  absolute 
gift  made  to  her,  either  "wholly  or  partially.  "  A  condition  or 
limitation  annexed  to  an  estate  ought  to  destroy  the  whole 
estate  to  which  it  is  annexed,  and  not  part  of  it."  (1  Coke,  86.  b.) 
This  principle  is  applied  to  the  quality  and  not  to  the  quantity 
of  the  estate ;  but  there  is  good  reason,  in  cases  like  the  pres- 
ent, for  applying  a  similar  principle  to  the  quantity  of  estate 
and  requiring  that  it  should  determine  the  whole.  Here  was 
$20,000  in  value  of  personal  estate  given  to  Chloe  Hyde,  and 
but  for  this  conditional  gift  over  of  $10,000  to  the  plaintiff,  all 
would  concede  that  her  title  was  absolue.  Is  it  proper  to  hold 
that  this  gift  over  of  $10,000,  should  render  the  whole  $20,000 
inalienable  for  her  life  ?  If  that  question  has  an  affirmative 
answer,  then  the  gift  over  of  $10,000  Avould  produce  the  same 
result,  and  would  do  so  even  if  the  estate  Avere  $100,000.  It 
may  be  said  that  the  gift  over  would  affect  the  alienability  of 
only  the  $10,000  and  not  of  the  excess.  I  think  otherwise,  for 
the  reason  that  the  plaintiffs'  legacy,  if  valid,  is  charged  on  the 
Avhole  personal  estate,  at  least,  and  must  be  paid,  though  it  ex- 
haust it  all ;  and  neither  executors,  nor  courts,  unless  they  can 
make  a  new  Avill  for  the  deceased,  can  set  apart  any  specific 
$10,000,  and  say  that  the  legatees'  contingent  claim  shall  be 
limited  to  that,  and  that  the  holder  of  the  life  interest  may  sell 
the  balance.  If  this  were  done,  and  that  which  should  be  set 
apart  should  fail  to  pay  the  legacy,  the  legatees  could  follow 
the  other  parts  of  the  estate,  even  into  the  hands  of  bona  fide 
purchasers.     (  Wilson  on  Springing  Uses,  36  et  seq.)     If  our 


MONROE— SEPTEMBER,  1855.  329 


Trustees  of  Theological  Seminary  of  Auburn  v.  Cole. 

view  of  this  question  is  not  correct,  it  is  at  least  incumbent  on 
the  phiintiifs  to  produce  some  case,  where  a  like  conditional  be- 
(juest  over  of  a  part  only  of  what  had  been  previously  given, 
has  been  held  valid. 

11.  Admitting  the  legacy  to  be  valid,  the  plaintiffs  have  no 
claim  whatever  against  this  defendant  on  account  of  it.  1.  The 
assent  of  the  executor  is  indispensable  to  perfect  the  title  of 
every  legatee,  either  in  law  or  equity,  and  whether  the  legacy 
be  general  or  specific.  (2  Williams  on  Ex.  1176,  1177.)  In 
all  cases  of  devises  of  personal  estate,  the  whole  vests  in  the 
executor,  and  therefore  no  legacy  can  come  out  of  the  executor 
without  his  consent.  (2  Atk.  598.)  Courts  of  equity  however, 
considering  the  executor  as  a  trustee,  will  compel  his  assent,  in 
proper  cases.  (1  Story^s  Eq.  Jur.  §§  540,  591,  593.)  It  is 
not  perceived  in  the  absence  of  the  executor,  and  without  either 
allegation  or  proof  that  he  has  ever  assented  to  this  legac}', 
how  a  recovery  can  be  had  against  the  defendant,  assuming 
that  he  is  shown  to  possess  the  funds  that  ought  to  pay  it. 
Even  if  the  legacy  was  of  a  specific  chattel,  I  can  see  no 
ground  on  which  there  could  be  a  recovery  without  showing  the 
executor's  assent.  {Doe  v.  Guy,  3  East,  120.  1  Strange,  70.) 
2.  The  assent  of  the  executor  would  not  aid  the  plaintiff  here. 
In  case  of  a  specific  legacy,  the  assent  of  the  executor  vests 
the  title  in  the  legatee,  and  he  may  sue  at  law  and  recover  it. 
(1  Strange,  70.  8  Coke,  96  a.  Plmoden,  544  a.  3  East,  120.) 
But  in  case  of  a  general  legacy,  the  assent  of  the  executor  to  its 
payment,  could  not  give  the  legatee  any  title  to  a  portion  of  the 
assets  in  the  hands  of  a  stranger.  If  there  were  a  dozen  strangers, 
each  having  $1000  of  the  assets,  could  the  legatee  maintain 
suits  against  each  ?  3.  This  defendant,  however,  has  received 
no  assets  belonging  to  David  Hyde's  estate,  and  the  plaintiffs 
have  no  claim  upon  any  other.  What  was  paid  to  the  defendant, 
was  only  what  he  was  entitled  to  receive  as  administrator,  from 
the  executors  of  Daniel  Kelloo;nj.  He  had  no  rin:ht  to  demand 
of  them  any  portion  of  the  $10,000,  (if  the  plaintiffs'  claim  is 
valid.)  and  did  not  demand  or  receive  it.  4.  But  if  he  did  de- 
mand and  obtain  it,  he  did  it,  not  as  administrator,  but  in   his 

Vol.  XX.  42 


330  CASES  IN  Tl.E  SUPllEME  COURT. 

Trustees  of  Theological  Seminary  of  Auburn  v.  Cole. 

private  character,  and  in  that  character  only  is  responsible  f(tr 
it.  As  administrator  of  Chloe  Hyde,  (if  the  plaintiff's  claim  is 
valid.)  he  had  no  more  right  to  the  ^10,000  than  any  other 
stranger,  and  if  he  demanded  and  obtained  it,  he  did  it  in  his 
own  wrong,  and  cannot  for  such  wrong  create  a  claim  against 
the  assets  of  Chloe  Hyde. 

III.  The  plaintiffs  had  no  power,  under  their  charter,  to  ex- 
ecute the  trust  created  by  the  legacy  in  question.  (^Robert- 
son V.  Bullions,  1  Kernan,  243,  254  et  seq.)  The  trustees 
have  only  the  power  of  applying  the  avails  of  the  institution 
"  from  time  to  time  to  the  purposes  of  the  institution,  in  such 
way  and  manner  only,  and  in  such  sums  as  shall  be  appointed 
and  directed  by  the  board  of  commissioners,"  mentioned  in  the 
act.  {LaiDS  of  1820,  p.  198,  §§  3,  5.)  How  can  a  board  so 
constituted  administer  this  trust  ?  If  the  commissioners  direct 
them  to  invest  the  fund  in  a  library  instead  of  the  endowment 
of  a  professorship,  must  they  not  do  it  ? 

By  the  Court,  T.  R.  Strong,  J.  In  the  case  of  the  present 
plaintiffs  against  the  present  defendant  and  others,  (18  Barb. 
360,)  we  decided,  after  full  and  careful  consideration,  that  the 
legacy  in  question,  of  David  Hyde  to  the  plaintiffs,  was  valid, 
and  we  must  follow  that  decision  in  this  case.  But  it  is  insisted 
by  the  defendant,  that  admitting  the  legacy  to  be  valid,  the 
claim  made  by  the  plaintiffs  against  him  cannot  be  supported ; 
and  I  am  of  opinion  that  they  are  not  entitled  to  recover  in  this 
action.  An  essential  position  to  the  validity  of  the  legacy  is, 
that  the  residuary  bequest  to  Chloe  Hyde,  to  the  extent  of  the 
amount  of  the  legacy,  is  of  the  use  only  of  the  subject  of  the  be- 
quest, unless  she  should  have  issue  living  at  her  death  ;  and 
another  position  connected  with  that,  and  well  sustained  by 
authority,  is  that  it  was  the  duty  of  the  executor  of  David  Hyde 
to  retain  of  the  estate  bequeathed  during  the  life  of  Chloe,  the 
charge  of  a  principal  sum  equal  to  the  amount  of  the  legacy, 
and  pay  over  to  her  only  the  interest  on  the  same.  In  Spear 
V.  Tinkham,  (2  Barb.  Ch.  Rep.  211,)  the  late  chancellor  says, 
'•as  a  general  rule,  where  there  is  a  bequest  of  the  whole  of  the 


MONROE— SEPTEMBER,   1855.  331 

Trustees  of  Theological  Seminary  of  Auburn  v.  Cole. 

testator's  personal  estate,  or  of  the  residue  thereof,  after  pay- 
ment of  debts  and  legacies,  to  one  person  for  life,  with  a  ren)air,- 
ier  over  to  others  after  the  termination  of  such  life  estate  therein, 
the  whole  must  be  converted  into  money,  and  invested  in  per- 
manent securities  by  the  executor,  and  the  income  paid  over  to 
the  person  entitled  to  the  life  estate.  (A.S'ee  also  Slmler  v.  Co- 
vcnhoven,  2  Paige,  122,  and  cases  cited.)  The  same  principle 
applies  where,  as  in  the  present  case,  the  bequest  is  of  the  whole 
residue,  limited,  as  to  part,  upon  a  contingency,  to  the  use  there- 
of for  life,  with  a  valid  gift  over  of  that  part,  upon  the  contin- 
gency, and  as  to  the  rest,  absolute  of  the  entire  estate.  In  such 
a  case,  as  to  the  part  of  the  estate  to  which  the  contingency  re- 
lates, the  income  only  can  be  paid  to  the  residuary  legatee,  but 
as  to  that  portion  of  the  estate  as  to  which  the  bequest  is  abso- 
lute, the  principal  must  be  paid.  The  gift  over  does  not  attach 
to  the  whole  residuary  estate,  so  as  to  render  the  whole  a  secu- 
rity for  its  payment,  but  the  executor  may,  as  to  the  legatee, 
set  apart  a  principal  sum  sufficient  to  discharge  the  gift,  and 
proceed  to  satisfy  the  other  legacies.  And  the  residuary,  or  any 
other  legatee,  who  has  been  paid  his  legacy,  will  not,  in  case  of 
a  subsequent  deficiency  of  assets  to  pay  the  gift,  from  the  waste 
of  the  executor,  be  obliged,  for  that  reason,  to  refund  any  part 
of  what  he  has  received.  (  Wolcoti  v.  Hall,  Bro.  C  C.  305. 
Liipton  V.  Lupton,  2  John.  Cli.  614.  SlorifsEq.  Juris.  §92.) 
Chloe  Hyde  was  not  therefore  in  her  lifetime  entitled  to  demand 
of  the  executor  of  her  father,  or  of  the  executors  of  that  execu- 
tor, on  account  of  the  legacy  to  her,  any  thing  further  than  the 
balance  of  the  legacy,  after  deducting  a  sum  suflBcient  to  pay 
the  contingent  legacy  to  the  plaintiifs  ;  and  the  rights  of  her 
administrator  are  no  greater  than  were  hers.  And  in  this  view 
of  the  case,  I  do  not  perceive  how  the  defendant  can  be  liable  to 
the  plaintiff  for  the  payment  of  the  legacy,  without  at  least  an 
allegation,  and  proof,  that  his  intestate,  or  himself,  has  received 
more  than  the  intestate  was  entitled  to  receive,  and  of  such  other 
circumstances  as  would  clothe  him  with  the  character  of  a  trus- 
tee for  the  plaintiffs,  as  to  the  excess.  But  no  such  case  is 
made  by  the  complaint  or  the  proofs.     The  ground  on  which  the 


CASES  IN  THE  SUPREME  COURT. 


Stephens  r.  Buffalo  and  New  York  Citj  Rail  Road  Co. 


counsel  for  the  plaintiifs  rests  their  right  to  recover,  in  rehition 
to  the  point  under  consideration,  is  that  Chloe  Hyde,  on  becom- 
ing of  age,  was  entitled  to  the  whole  fund  and  its  increase,  de- 
ducting payments  made  in  pursuance  of  the  will,  and  had  the 
legal,  although  the  executors  of  Kellogg,  the  executor  of  Duvid 
Hyde,  had  the  actual  possession  thereof;  that  she  held  the 
same  in  her  own  right,  subject  to  a  contingent  trust  in  favor  of 
the  plaintiffs  to  the  extent  of  their  legacy ;  and  that  the  de- 
fendant, as  administrator  of  Chloe,  is  entitled  to  all  the  assets 
of,  and  responsible  for  all  claims  against,  her  estate,  while  any 
assets  remain  that  may  become  available.  It  is  obvious  that 
it  was  with  this  view  of  the  legal  rifjrhts  and  obligations  of  the 
parties,  the  complaint  was  framed.  The  errors  in  this  position 
are  fully  disclosed  in  the  views  already  presented. 

In  my  opinion  the  defendant  is  entitled  to  judgment  on  the 
verdict. 

[Monroe  Gknkrai,  Term,  Septembers,  1855.     Selden,  Johnson  and  T.  R. 
St}'ong,  Justices.] 


Stephens  vs.  The  Buffalo  and  New  York  City  Rail 
Road  Company. 

Delivery  is  essential  to  the  validity  of  a  deed  or  contract ;  and  it  is  always  com- 
petent to  show,  by  parol,  that  there  has  not  been  a  deliver}'. 

Thei-c  can  be  no  delivery  without  an  acceptance  by  the  party  who  is  to  receive 
the  deed. 

Where,  in  an  action  of  ejectment,  the  defendants  claim  the  right  to  the  posses- 
sion, under  a  written  contract  for  the  sale  and  conveyance  of  the  premises  to 
them  by  the  plaintiff,  evidence  is  admissible  in  behalf  of  the  plaintiff,  to  show 
that  the  alleged  contract  was  never  delivered,  but  was  placed  in  the  hands  of  the 
defendants'  agent,  not  as  such  agent,  and  not  as  a  contract,  but  to  be  present- 
ed by  him,  in  behalf  of  the  plaintiff,  to  the  defendants,  as  a  i)roposition  for  their 
acceptance  or  refusal,  and  to  be  void  as  a  proposition,  unless  the  defendants 
should  give  notice  to  the  plaintiff,  of  its  "acceptance,  within  a  specified  time; 
that  such  notice  was  not  given ;  and  that  afterwards,  and  before  any  notice  of 
acceptance,  by  the  defendants,  the  plaintiff  gave  notice  to  the  agent  of  the  de' 
fondants,  as  such  agent,  that  he  withdrew  the  offer. 


MONROE- SEPTEMBER,  1855.  333 

Stephens  v.  Buffalo  and  New  York  City  Rail  Road  Co. 

Under  such  circumstances,,  the  paper  will  not  bind  the  plaintiff,  as  a  contract, 
until  the  defendants  have  accepted  it;  and  until  acceptance,  the  plaintiff  may 
withdmw  or  rescind  it. 

And  a  declaration  by  the  plaintiff',  to  the  defendants,  that  he  will  not  be  bound 
by  the  proposition,  made  at  any  time  before  acceptance,  will  terminate  it. 

Where  the  execution  of  a  paper  by  one  party  is  completed  by  a  delivery  thereof 
to  the  agent  of  the  other  party,  as  a  contract,  parol  evidence  of  conditions 
qualifying  the  delivery  is  not  admissible ;  and  the  party  signing  the  paper  will 
be  bound,  although  it  is  not  signed  by  the  other  party. 

THIS  was  an  action  of  ejectment,  brought  to  recover  the  pos- 
session of  a  strip  of  land,  sixtj-six  feet  wide,  occupied  by 
the  defendants'  rail  road.  The  cause  was  tried  before  Justice 
Johnson,  and  a  jury,  at  the  Steuben  circuit,  in  November,  1853, 
and  a  verdict  was  rendered  in  favor  of  the  plaintiff.  The  de- 
fendants took  exceptions  to  the  rulings  on  the  trial,  and  they, 
under  an  order  of  the  court,  were  directed  to  be  heard,  in  the 
first  instance,  at  the  general  term.  The  plaintiff  proved  that 
the  defendants  were  in  possession  of  the  premises  in  question. 
The  defendants  claimed  the  right  to  such  possession  under  and 
by  virtue  of  a  written  contract  between  the  parties.  This  con- 
tract provided,  first,  for  the  conveyance  of  the  premises  in  ques- 
tion to  the  defendants;  and  second,  contained  a  "grant  to  the 
defendants,  their  successors  and  assigns,  of  permission  to  enter 
Svith  their  surveyors,  agents,  workmen  and  teams  upon  the 
premises  for  the  purpose  of  surveying  the  route  of  the  road  and 
of  building  the  same."  This  contract  was  signed,  under  seal,  by 
the  plaintiff  and  others,  but  did  not  appear  to  have  been  signed 
by  the  defendants.  The  contract  provided  for  the  conveyance 
of  the  premises  in  question,  upon  the  payment  of  $600  ;  such 
conveyance  was  to  be  made  within  a  reasonable  time  after  the  lo- 
cation of  the  route  of  the  road,  and  within  sixty  days  from  the 
commencement  of  the  grading  of  the  same,  on  the  .premises. 
The  $600  were  tendered  within  sixty  days  after  the  defendants 
began  to  work  upon  the  premises,  in  constructing  their  road 
The  plaintiff  was  permitted,  on  the  trial,  to  show  that  the  contract 
was  delivered  subject  to  certain  parol  conditions,  and  that  be- 
fore such  conditions  were  complied  with,  the  plaintiff  notified 
the  defendants  that  he    would  not   be  further  bound  by  the   iu- 


334  CASES  IN  THE  SUPREME  COURT. 

Stepliens  v.  Buffalo  and  New  York  City  Rail  Road  Co. 

strument  unless  he  was  compelled  by  law  to  stand  to  it.  The 
defendants  objected  to  the  introduction  of  all  evidence  tending 
to  shoAV  that  parol  conditions  accompanied  the  delivery  of  the 
contract.  Such  objections  were  overruled,  and  the  defendants 
excepted. 

William  Howell,  for  the  plaintiff.  I.  The  title  of  the  plain- 
tiff is  admitted  by  the  pleadings,  and  the  defendants  admitted 
upon  the  trial  that  they  were  in  possession  of  the  premises  in 
question.  The  plaintiff  is  therefore  entitled  to  judgment,  un- 
less he  has  conveyed  the  property  to  the  defendants  or  so  far 
divested  himself  of  his  estate  as  to  give  to  the  defendants  a 
right  to  the  possession. 

II.  The  instrument  in  writing,  of  the  date  of  the  20th  day  of 
July,  1848,  set  out  in  the  bill  of  exceptions,  is  but  an  agreement 
or  contract  to  convey  upon  the  terms  specified  therein,  and  not 
a  deed  or  grant  of  the  land.  It  pi-ovides  for  the  future  execu- 
tion of  a  deed  upon  the  performance  of  the  conditions  by  the 
defendants.  {Ives  v.  Ives,  13  John.  235.  Jackson  v.  Myers,  3 
id.  388.     Jackson  v.  Clark,  Id.  424.) 

III.  That  agreement  or  contract  was  but  a  proposition  or  offer 
of  terms  of  sale  made  by  the  plaintiff  and  the  other  parties  to  it, 
to  the  defendants  for  their  acceptance,  and  the  plaintiff  had  a 
right  to  retract  or  withdraw  the  offer  at  any  time  before  it  Avas 
accepted  by  the  defendants,  for  until  then  no  agreement  existed 
between  them.  [Chit,  on  Cont.  btk  Amer.  from.  3(/  Lond.  ed. 
J}.  13,  a7id  cases  there  cited.  Also  p.  9,  notes  1,  2.  Reynolds 
X.  Dunkirk  and  /State  Line  Rail  Road  Co.,  17  Barb.  613.) 

IV.  Parol  evidence  of  the  facts,  circumstances  and  declara 
tions  of  the  parties,  showing  the  terms  and  conditions  upon 
which  the.  agreement  in  question  was  placed  in  the  hands  of  the 
agent  of  the  defendants  and  the  purposes  for  which  it  Avas  done, 
the  extent  of  his  authority  in  respect  of  it,  and  the  character 
of  the  possession  of  it  by  the  defendants,  was  properly  admitted 
by  the  judge  as  bearing  upon  the  question  of  the  delivery  of  the 

agreement  to  the  defendants,  and   their  acceptance  of  it.     (10 


MONROE— SEPTEMBER,  1855.  335 

Stephens  v.  Buffalo  and  New  York  City  Rail  Road  Co. 

We7id.  310.     23  id.  43.     1  id.  478.)     Nor  can  authority  to  t]ie 
contrary  be  found  in  the  books.  ^ 

V.  There  was  no  valid  delivery  of  the  agreement  to  Swain  as 
a  stranger,  for  the  use  or  benefit  of  the  defendants,  for  it  was  not 
so  delivered  by  the  makers,  at  the  time,  nor  was  it  unconditional 
and  absolute  in  terms,  evincing  an  intention  on  their  part  to  put 
it  absolutely  out  of  their  own  possession,  power  and  control. 
(4  Cruise's  Dig.  34,  §  85.  Shep.  Touch.  57,  58.  Jackson  v. 
Phipps,  12  John.  418.) 

VI.  There  was  no  valid  delivery  of  the  agreement  to  the  de- 
fendants themselves,  or  to  Swain  as  their  agent,  or  acceptance 
by  either.  Swain  refused  to  receive  it  when  offered  to  him,  and 
stated  that  he  was  not  authorized  to  accept  it.  It  was  then 
placed  in  his  hands,  not  as  the  agent  of  the  defendants,  but  as 
the  agent  of  the  makers.  Not  by  a  formal  delivery  for  the  ben- 
efit or  use  of  the  defendants,  as  the  act  or  deed  of  the  makers, 
but  for  the  only  and  especial  purpose  of  submitting  it  to  the 
defendants  for  their  acceptance  or  refusal.  The  defendants  did 
not  accept  it,  but  on  the  contrary  gave  notice  to  the  plaintiff,  in  ^ 
the  month  of  March  or  April,  1851,  (almost  three  years  after  it 
was  sent  to  them)  that  they  had  not  accepted  it.  Upon  the  re- 
ceipt of  that  notice  the  plaintiff  retracted  and  withdrew  the  prop- 
osition or  agreement,  and  gave  notice  to  the  defendants  to  that 
effect.  There  can  be  no  valid  delivery  of  a  deed  unless  it  is  the 
intention  of  the  grantor  to  deliver  it  as  his  deed  for  the  purpose 
of  giving  it  effect  as  such,  nor  unless  it  is  accepted  as  such. 
This  agreement  never  had  any  legal  operation  or  effect  more 
than  it  would  have  had  if  it  had  always  remained  in  the  hands 
of  the  parties  Avho  executed  it.  {Jackson  v.  Dunlap,  1  John. 
Cas.  114.  Jackson  v.  Phipps^  12  John.  M8.  Jackson  v.  Bo- 
dle,  20  id.  184.  Jackson  v.  Richards,  6  Cowen,  617. .  Jackson 
V.  Perkins,  2  We7id.  308.  Clark  v.  Gifford,  10  id.  310.  Gil- 
bert V.  7Vte  North  American  Pire  Insurance  Co.,  23  id.  43. 
Reynolds  v.  The  Dunkirk  and  State  Line  Rail  Road  Co..  11 
Barb.  613.      Vassar  v.  Camp,  1  ICernan,  441.) 

VII.  There  was  no  error  in  the  refusal  of  the  judge  to  charge 
the  jury  as  requested  by  the  counsel  for  the  defendants  in  his 


336  CASES  IN  THE  SUPREME  COURT. 

Stephens  v.  Buffalo  and  New  York  City  Rail  Road  Co. 

second  exception,  or  in  the  charge  of  the  judge  on  that  point, 
that  the  jury  had  a  right  to  take  into  consideration  -whether 
there  were  parol  conditions  made  at  the  time  of  the  delivery,  and 
if  they  found  there  were,  then  that  such  conditions  were  obliga- 
tory. {Clark  V.  Gifford,  10  Wend.  310,  and,  the  other  author- 
ities cited  to  the  Qth  point.) 

VIII.  There  was  no  error  in  the  refusal  of  the  judge  to  charge 
the  jury  as  requested  by  the  counsel  for  the  defendants  in  their 
third  and  fourth  exceptions,  or  in  that  part  of  his  charge  in  which 
he  stated,  "that  the  delivery  of  the  contract  to  the  agent  was 
not  conclusive  as  to  that  point,  [i.  e.  the  point  in  question  ;J  that 
it  was  competent  to  show  by  parol  evidence  a  conditional  deliv- 
ery, and  for  the  jury  to  find  from  such  evidence  that  the  delivery 
was  conditional.  (10  Wend.  310,  above  cited  to  last  point,  and 
the  authorities  above  cited  to  the  plaintiff's  sixth  point.) 

IX.  There  Avas  no  error  in  the  refusal  of  the  judge  to  charge 
the  jury  as  stated  in  the  5th  and  6th  exceptions  of  the  counsel 
for  the  defendants  ;  there  not  having  been  any  delivery  of  the 
agreement  to  either  Swain  as  their  agent,  for  he  refused  to  ac- 
cept it  because  he  was  not  authorized  to  do  so,  or  to  the  defend- 
ants for  he  was  not  authorized  to  deliver  it  to  them,  but  only  to 
submit  it  to  them  to  accept  or  refuse  it  as  a  proposition,  or  if  he 
Avas  authorized  to  deliver  it  to  the  defendants,  then  because  they 
refused  to  accept  it ;  and  parol  evidence  was  competent  to  prove 
those  facts,  although  the  instrument  was  executed  under  seal, 
and  a  parol  revocation  of  the  proposition  was  effectual,  {See 
authorities  cited  to  plaintiff  \9  6th  point,  and  to  his  2d  point.) 

X.  There  is  no  error  in  the  refusal  of  the  judge  to  charge  the 
jury  as  requested  in  the  7th  and  8th  exceptions,  for  the  reasons 
mentioned  in  the  last  point  and  under  the  authorities  tliere  cited, 
nor  in  his  refusal  to  charge  as  requested,  as  stated  in  the  9tli 
and  10th  exceptions,  for  the  same  reasons,  and  for  the  further 
reason  that  it  did  not  appear  that  the  defendants  had  located  their 
road  before  the  plaintiff  retracted  or  withdrew  his  proposition. 

XI.  There  was  no  error  in  the  refusal  of  the  judge  to  charge 
the  jury  as  requested  in  tlie  11th  exception  ;  for  the  facts  were 


MONROE— SEPTEMBER,  1855.  337 

Stephens  v.  Buffalo  and  New  York  City  Rail  Road  Co. 

properly  within  the  province  of  the  jury,  and  of  right  submitted 
to  them.     {Clark  v.  Gifford,  supra.) 

XII.  There  is  no  error  in  the  charge  of  the  judge,  as  stated 
in  the  12th  and  13th  exceptions,  but  it  is  fully  sustained  by  the 
authorities  cited  to  the  foregoing  points. 

John  Ganson,  for  the  defendant.  I.  The  contract  having 
been  executed  by  the  plaintiff  and  his  associates,  under  seal,  and 
delivered  to  the  defendants'  agent,  as  such  agent,  parol  evidence 
was  inadmissible  to  qualify  such  delivery.  (  Ward  v.  Lewis,  4 
Pick.  519.  Worrall  v.  Murm,  1  JSeld.  229,  238.  4  Kent's 
Com.  501,  Itk  ed.  3  Barb.  Ch.  R.  375.  6  Paige,  310.  Shep- 
herd^ s  Touch.  59.) 

II.  The  contract  was  binding,  although  it  was  not  signed  by 
the  defendant.  The  contract  had  been  acted  upon  by  the  defend- 
ant. It  entered  into  possession  of  the  premises  under  it,  and 
located  and  constructed  its  road  thereon. 

III.  The  contract  not  only  provided  for  a  conveyance  of  the 
land,  but  granted  the  right  to  enter  upon  and  acquire  an  interest 
therein,  by  the  construction  of  the  road.  Such  entry  had  been 
made  and  construction  commenced,  before  the  plaintiff  intimated 
that  he  did  not  intend  to  perform  the  agreement. 

IV.  The  contract  secured  to  the  defendant  something  more 
than  a  license  ;  it  granted  a  privilege  to  the  "  defendant,  its 
successors  and  assigns,"  to  build  a  road  on  the  plaintiff's  land 
for  a  pei'inanent  purpose.  The  defendant  had  expended  money 
upon  the  faith  of  such  grant,  and  the  plaintiff  could  not,  there- 
fore, rescind  it.  (^Renick  v.  Ker7i,  14  Serg.  l^  Rawle,  267. 
Mumford  v.  Whitney,  15  Wend.  380.  Winter  v.  BrockweCl, 
8  East,  308.     3  Kent's  Com..  559.     11  N.  H.  Rep.  102.) 

V.  The  charge  at  fol.  74  is  wrong.  The  saying  of  the  plain- 
tiff, therein  referred  to,  did  not  amount  to  a  withdrawal  of  the 
proposition,  if  the  instrument  in  question  is  to  be  treated  simply 
as  a  proposition.     (1  Hill,  572.     1  Taunt.  256.) 

By  the  Court,  T.  R.  Strong,  J.     Delivery  is  essential  to 
the  validity  of  a  deed  or  contract ;  and  it  is  always  competent 
Vol.  XX.  43 


338  CASES  IN  THE  SUPREME  COURT. 

Stephens  v.  Buffalo  and  New  York  City  Rail  Road  Co. 

to  show  by  parol  that  there  has  not  been  a  delivery.  {Roberts  v. 
Jackson,!  Wend.  478.  Clark  v.  GiJord,lQ  id.  310.  Gilbert 
V.  iV.  Amer.  Fire  Ins.  Co.,  23  id.  43.  The  Lady  Superior  v. 
McNamara,  3  Barb.  Ch.  Rep.  375.)  There  can  be  no  delivery 
without  an  acceptance  by  the  party  wdio  is  to  receive  it.  {Jack- 
soti  V.  Phipps,  12  John.  418.  Chvrch  v.  Gilman,  15  Wend. 
656.  Crosby  v.  Hilyer,  24  Wend.  280.  Jackson  v.  Bodle,  20 
John.  184.  Jackson  v.  Richards,  6  Cowen,  617.)  The  proof 
on  the  part  of  the  plaintiff,  in  avoidance  of  the  defense  set  up, 
was  therefore  admissible.  It  goes  to  the  point,  that  the  paper 
purporting  to  be  a  contract  for  the  sale  of  the  premises  in  ques- 
tion to  the  defendants,  was  not  delivered ;  that  it  was  merely 
offered  to  the  defendants,  but  the  defendants  did  not  accept  it, 
and  the  offer  was  retracted.  The  proof  is,  in  substance,  that  the 
paper  was  placed  in  the  hands  of  the  agent  of  the  defendants, 
not  as  such  agent,  and  not  as  a  contract,  but  to  be  presented  by 
him,  in  behalf  of  the  plaintiff  and  his  associates  in  the  paper,  to 
the  defendants,  as  a  proposition  for  their  acceptance  or  refusal, 
nnd  to  be  void  as  a  proposition,  unless  the  defendant  should 
give  notice  to  the  plaintiff,  of  its  acceptance,  within  a  time  spe- 
cified ;  that  such  notice  was  not  given  within  the  time  ;  and  that 
afterwards  and  before  any  notice  of  acceptance  by  the  defend- 
ants, the  plaintiff  gave  notice  to  the  agent  of  the  defendants, 
as  such  agent,  that  he  withdrew  the  offer. 

There  was  no  error  in  the  instruction  to  the  jury,  that  one 
question  was  whether  the  delivery  of  the  paper  was  absolute,  or 
as  a  proposition  to  be  submitted  to  the  directors  of  the  defend- 
ants. The  delivery  referred  to  must  be  understood  to  be,  hav- 
ing reference  to  the  proof,  the  putting  the  paper  in  the  hands 
of  the  person  who  received  it,  to  submit  for  the  plaintiff  and 
the  other  persons  whose  names  are  subscribed  to  the  paper,  as  a 
proposition  to  the  directors.  If  the  paper  was  handed  to  that 
person  for  the  purpose  mentioned,  it  would  not,  as  the  learned 
justice  advised  the  jury  in  substance,  bind  the  plaintiffs,  as  a 
contract,  until  the  defendants  accepted  it ;  and  until  acceptance 
the  plaintiffs  m'gh:  'v^thdraw  or  rescind  it.  {Vassar  v.  Camp 
1  Kernan,  4*1.)     A.id  ai  'leciaration  by  the  plaintiff  to  the  de 


MONROE— SEPTEMBER,  1855.  339 

Peabodj'  v.  Washington  County  Mutual  Insurance  Co. 

Tendants,  that  he  would  not  be  bound  by  the  proposition,  made 
ftt  any  time  before  acceptance,  would,  as  it  was  properly  held, 
terminate  it.     {Roberts  v.  Jacksoti,  1  Wend.  478.) 

So  far  as  the  learned  justice  refused  to  charge  as  requested, 
the  points  embraced  in  the  requests,  viewed  in  connection  with 
the  proof  made,  appear  to  be  mostly,  in  substance,  the  negative 
of  the  instructions  actually  given,  and  I  do  not  perceive  that  the 
refusal  involves  any  error.  In  regard  to  the  points  not  met  by 
the  charge,  I  think  the  requests  were  properly  declined. 

It  is  undoubtedly  true  that  if  the  execution  of  the  paper  had 
been  completed  by  a  delivery  to  the  agent  of  the  defendants,  as 
a  contract,  parol  evidence'  of  conditions  qualifying  the  delivery 
Avould  not  have  been  admissible,  and  the  plaintiif  would  have 
been  bound,  although  the  paper  was  not  signed  by  the  defend- 
ants. (  Worrall  v.  Munn,  1  JSelden,  229.)  And  the  defendants 
having  by  a  tender  entitled  themselves  to  a  deed,  might  avail 
themselves  of  their  equitable  title  as  a  defense  to  the  a'ction ; 
{Code,  §§  150,  274;)  and  the  contract  could  not  be  revoked. 
But  these  positions  of  the  defendants  are  all  dependent  upon 
the  delivery  and  complete  execution  of  the  paper  as  a  contract. 

In  my  opinion  a  new  trial  should  be  denied. 

[Monroe  General  Term,  Sept.  3, 1855.  Selden,  Johnson  and  T.  R.  Strong. 
Judtices.] 


Peabody  and  Riggs    vs.  The  Washington  County  Mu- 
tual Insurance  Company. 

A  policy  of  insurance  is  a  contract  of  indemnity,  and  without  an  interest  in  the 
subject  of  insurance,  at  the  time  of  the  fire,  the  holder  of  the  policy  sustains 
no  loss. 

Hence  an  assignment  of  a  policy  as  collateral  security  for  the  payment  of  a  sum 
of  money  by  the  assignor,  will  not  enable  the  assignee  to  maintain  an  action 
on  the  policy,  in  case  of  loss  ;  where  it  does  not  appear  from  the  complaint 
that  he  had,  at  the  time  of  the  fire,  any  interest  in  the  property  insured. 

But  where  the  assignor  remains  the  owner  of  the  property,  until  the  time  of  the 


SO 

339 

38 

348 

.S.5 

73 

a=> 

75 

45 

387 

50 

5fi 

36a  434 

38a  347 

93a  505 

340  CASES  IN  THE  SUPREME  COURT. 

Peabody  v.  Washington  County  Mutual  Insurance  Co. 

fire,  the  wliole  l<5ss  is  sustained  by  him.  He  continues  the  owner  of  •  n« 
policy,  subject  to  the  title  of  the  assignee  to  it  for  the  j^ayment  of  liis  debt, 
and,  it  not  being  available  to  the  assignee,  the  assignor  alone  may  recover 
upon  it,  to  the  extent  of  the  loss. 

Where  a  demuirer  is  to  the  whole  complaint,  if  one  of  the  plaintifl&  might  havo 
judgment  separately,  it  is  bad. 

A  demurrer  must  be  sustained  or  fail  to  the  whole  extent  to  which  it  is  applied. 

A  demurrer  will  not  lie  for  a  misjoinder  of  parties. 

Tlie  defect  of  parties  for  which  a  demurrer  is  allowed,  under  ^  314  of  the  code, 
is  a  deficiency  of,  and  not  too  many,  parties. 

rpiIIS  was  an  appeal  from  a  judgment  entered  at  a  special 
X  term,  upon  demurrer  to  the  complaint.  The  action  was 
brought  upon  a  policy  of  insurance  for  ^875,  issued  by  the  de- 
fendants to  C.  D.  Riggs,  one  of  the  plaintiffs,  upon  his  dwelling 
house,  household  furniture,  wearing  apparel,  grain  and  provis- 
ions therein.  The  policy  was  assigned  by  Riggs,  May  20, 
1850,  to  one  Porter,  as  collateral  security  for  $700  ;  and  Porter, 
on  the  18th  of  September,  1850,  assigned  it  with  consent  to 
the  plaintiff  Peabody,  as  collateral  security  for  $400.  The  prop- 
erty was  destroyed  by  fire  on  the  27th  of  October,  1852. 
Peabody  furnished  proof,  &c.  The  complaint  did  not  show  that 
Porter  or  Peabody  had  any  interest  in  the  property  insured, 
or  that  the  debt  for  which  the  policy  was  assigned  as  collateral 
security  was  a  lien  on  the  property  insured.  The  plaintiffs 
claimed  that  Peabody's  interest  was  $400,  and  that  the  resi- 
due equitably  belonged  to  Riggs.  The  defendants  demurred, 
1st.  for  defect  of  parties  plaintiffs,  and  2d,  because  the  complaint 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
Under  the  first  point  it  was  urged  that  there  was  nothing  to 
show  that  the  plaintiffs  had  a  joint  interest ;  and  under  the 
second,  it  was  insisted  that  it  did  not  appear  that  Peabody  was 
interested  in  the  subject  of  the  insurance.  Judgment  was 
given  for  the  plaintiffs,  at  the  special  term,  with  leave  to  the 
defendants  to  answer  on  payment  of  costs.  The  defendants 
appealed. 

J.  C.  Hopkins,  for  the  appellants. 

/.  Dorr,  for  the  respondents. 


MONROE— SEPTEMBEK,  1855.  34] 


Peabody  v.  Washington  County  Mutual  Insurance  Co. 

By  the  Court,  T.  R.  Strong,  J.  The  plaintiflF  Peabody, 
according  to  the  allegations  in  the  complaint,  under  assignments 
of  the  policy  of  insurance,  made  with  the  consent  of  the  de- 
fendants, and  by  virtue  of  an  understanding  with  the  plaintiff 
Riggs,  to  whom  the  policy  was  issued — all  of  which  took  place 
before  the  loss — holds  the  policy  as  collateral  security  for  the 
payment  to  him  by  Riggs  of  ^400.  But  it  does  not  appear  by 
the  complaint  that  he  had  at  any  time  any  interest  in  the  prop- 
erty insured,  and  this  is  fatal  to  his  right  to  recover.  A  policy 
is  a  contract  of  indemnity,  and  without  an  interest  in  the  sub- 
ject of  insurance,  at  the  time  of  the  fire,  the  holder  of  the 
policy  sustains  no  loss.  {Mnrdock  v.  Chenango  Co.  Mutual 
Tns.  Co.^  2  Comst.  210,  216.)  In  Marshall  on  Insurance^ 
i\st  Am.  ed.)  696,  it  is  said  "the  mere  assignment  of  the  policy 
would  be  of  little  avail,  without  an  assignment  of  the  subject 
matter  of  the  insurance  also."  The  assignee  could  derive  no 
benefit  from  the  policy,  unless  the  interest  of  the  assured  were 
transferred  with  it ;  because,  as  we  have  already  shown,  the 
insured  must  not  onl}'  have  an  interest  in  the  subject  matter  of  the 
insurance,  at  the  time  of  insuring,  but  also  at  the  time  the  loss 
happens.  (3  Kent's  Com.  3T1,  375,  Ath  ed.)  The  difiiculty  in 
the  way  of  a  recovery  by  the  assignee  is  not  in  the  policy,  or 
assignment,  but  that  he  has  not  been  damnified.  {Howard  v. 
The  Albany  Ins.  Co.,  3  Denio,  301,  30 3-)  This  interest  must  be 
stated  in  the  complaint,  as  well  as  the  fire  and  other  necessary 
facts,  to  make  out  a  cause  of  action.  {Granger  v.  Howard 
Ins.  Co.,  5  Wend.  202.) 

But  I  think  the  complaint  discloses  a  good  cause  of  action  in 
favor  of  the  plaintiff  Riggs.  The  only  objection  to  his  right 
to  recover,  regarding  him  as  sole  plaintiff,  which  is  indicated 
on  the  part  of  the  defendants,  is  founded  upon  the  allegations 
of  the  assignments  of,  and  the  right  of  Peabody  to,  the  policy. 
This  objection  cannot  prevail,  for  the  reason  that  the  assign- 
ments, and  the  right  of  Peabody,  are  merely  as  collateral 
security  for  a  debt  due  from  Riggs,  and  Peabody  cannot,  upon 
the  facts  stated,  maintain  an  action  on  the  policy.     It  must  be 


342        CASES  IN  THE  SUPREME  COURT. 

Pcabody  r.  Washington  County  Mutual  Insurance  Co. 

understood,  in  the  absence  of  any  thing  appearing  to  the  con- 
trary, that  Riggs  remained  the  owner  of  the  property  at  tlie 
time  of  the  fire  ;  the  whole  loss  therefore  was  sustained  l)y 
him.  He  continues  the  owner  of  the  policy,  subject  to  the 
title  of  Peabody  to  it  for  the  payment  of  his  debt,  and,  as  it  is 
not  available  to  the  latter,  he  alone  may  recover  upon  it  to  the 
extent  of  the  loss.  The  liability  of  the  defendants,  on  their 
contract,  to  some  one,  is  not  affected  by  the  assignment,  and  as 
they  are  not  liable  to  the  plaintiffs  or  to  Peabody  alone,  they 
are  so  to  Riggs.  It  is  of  no  moment  whether  his  interest  is 
legal  or  equitable,  as  he  only  is  entitled  to  recover. 

The  demurrer  was  rightly  overruled,  unless  judgment  for  or 
against  the  plaintiffs  jointly,  only,  could  properly  be  rendered. 
As  it  is  to  the  whole  complaint,  if  one  of  the  plaintiffs  might 
have  judgment  separately,  it  is  bad.  A  demurrer  must  be  sus- 
tained or  fail  to  the  whole  extent  to  which  it  is  applied.  (1  Chit. 
PI.  576^  7,  Phil.  ed.  of  1828.)  By  .§  274  of  the  code,  "judg- 
ment may  be  given  for  or  against  one  or  more  of  several 
plaintiffs,  and  for  or  against  one  or  more  of  several  defendants.*' 
Under  the  authority  of  this  provision,  I  do  not  perceive  any 
difficulty  in  giving  judgment  for  one  of  the  plaintiffs  and 
against  the  other.  The  object  of  the  provision  was  to  abrogate 
the  common  law  rule  which  the  defendants  now  seek  to  have 
enforced,  and  to  enable  the  court  tc  award  justice  according  to 
the  rights  of  the  parties.     {Brumskill  v.  James,  1  Kern.  294.) 

Another  ground  on  which  the  decision  on  the  deraui'rer  was 
right — the  complaint  presenting  a  cause  of  action  in  favor  of 
one  of  the  plaintiffs — is,  that  a  demurrer  will  not  lie  for  a  mis- 
joinder of  parties.  The  defect  of  parties  for  which  a  demur- 
rer is  allowed  under  h  344  of  the  code,  is  a  deficiency  of,  and 
not  too  many,  parties.  Upon  the  opposite  construction,  the 
whole  beneficial  purpose  of  §  274  might  be  entirely  defeated  in 
many  cases,  unless  the  court  should  hold  that  under  the  code  a 
demurrer  may  be  sustained  in  part  only. 

The  proper  course  for  the  plaintiffs  to  pursue  in  this  case  on 
the  decision  of  the   demurrer,  after  the  expiration  of  the  time 


MONEOE— SEPTEMBER,  1855.  343 

Elton  V.  Markham. 

allowed  t3  answer,  was.  to  ask  leave  of  the  court  to  enter  judg- 
ment in  favor  of  the  plaintiff  entitled  to  judgment,  and  to  dismiss 
the  complaipt  as  to  the  other  plaitiif. 

The  judgment  must  be  affirmed  as  to  Biggs,  and  reversed  as 
to  Peabody ;  neither  party  to  be  allowed  costs  of  the  appeal. 
{Code,  §  306.) 

[MoNROK  General  Term,  September  3.  1855.  Selden,  Johnson  and  T.  R. 
Strong,  Justices.] 


Elton  vs.  Markham. 

A  single  exception  to  a  series  of  decisions,  one  of  wliicli  decisions  is  correct,  is 
unavailing. 

A  complaint  alleged  that  the  plaintiff,  on  or  about  the  31st  day  of  May,  1851, 
was  lawfully  possessed,  as  of  his  own  property,  of  one  large  gold  English  level 
watch  of  the  value.  &c.,  and  that  the  plaintiff,  on  or  about  the  time  above 
stated,  did  lend  said  watch,  without  any  consideration  therefor,  to  the  defend- 
ant, for  the  space  of  four  days,  with  the  promise  on  the  part  of  the  defendant 
that  within  that  time  said  watch  should  be  returned  to  the  plaintiff,  its  rightful 
owner.  It  then  charged  that  the  defendant  knew  the  watch  was  the  i)roperty 
of  the  plaintiff,  and  that  with  intent  to  defraud  &c.,  he  had  not  delivered  it  to 
the  plaintiff,  &c.,  but  had  "converted  and  disposed  of  it  to  the  defendant's 
use,"  &c. 

Held,  1.  That  the  allegation  that  the  watch  was  lent  to  the  defendant,  by  the 
plaintiff,  although  not  necessary  to  be  made,  in  that  form,  was-a  material  alle- 
gation, for  the  puri)ose  of  connecting  the  defendant  wlili  the  propertj',  so  as  to 
lay  a  foundation  for  the  allegation  of  a  refusal  to  deliver  it,  on  request,  and  of 
a  conversion  ;  and  was  issuable. 

2.  That  a  denial,  in  the  answer,  that  the  plaintiff,  "  on  or  about  the  31st  day  of 
May,  1851,  did  leave  such  watch  as  aforesaid  with  the  defendant,  for  any  period, 
with  the  promise  of  this  defendant  to  return  the  same  to  the  plaintiff,''  was  bad 
pleading,  in  form;  it  being  a  negative  pregnant;  but  that  it  controverted  tho 
allegation  as  to  the  lending  of  the  watch  to  him,  and  put  it  in  issue,  within  the 
mcanmg  of  ^  168  of  the  code.  That  it  was  an  informal  denial,  and  unless 
objection  was  made,  fi>r  defect  of  form,  before  trial,  it  would  be  waived,  and 
each  allegation  would  be  regarded  as  controverted. 

8  That  an  allegation,  in  the  answer,  that  the  defendant  was  "  not  informed" 
and  could  "  not  state,"  whether  the  plaintiff  was,  at  the  time  stated  ii:  the  con> 


344  CASES  IN  THE  SUPKEME  COURT. 

Elton  V.  Maikham. 

plaint,  possessed  as  of  his  own  property,  of  the  watch,  was  not  warrar  ted  by 
the  code. 

4.  That  a  denial  of  all  fraudulent  intent  on  the  part  of  of  the  defendant,  "  or 
any  unlawful  conversion  of  said  watch  to  his  own  use,"  formed  no  material  issue 
in  respect  to  the  intent;  and  that  the  denial  of  any  unlawful  conversion  was 
not  intended  to  controvert  that  the  defendant  actually  converted  and  disposed 
of  the  property  to  his  own  use,  but  simply  the  unlawfulness  of  what  he  did. 

6.  That  an  averment,  in  the  answer,  of  a  sale  and  delivery  of  the  watch  to  the 
defendant  was  not  inconsistent  with  the  allegation  in  the  complaint,  of  a  bail- 
ment, and  therefore  a  denial  of  it;  it  not  api^earing,  on  the  face  of  the  plead- 
ings, that  the  sale  was  not  subsequent  to  the  bailment. 

A  denial,  in  an  answer,  must  be  general  or  specific,  or  it  must  be  of  any  knowledge 
or  information,  &c.,  sufficient  to  form  a  belief. 

A  PPEiVL,  by  the  plaintiff,  from  a  judgment  entered  at  a 
j.1.  special  term  of  the  court,  after  a  trial  at  the  circuit.  The 
complaint  was  as  follows  :  "  Nathaniel  Elton,  the  plaintiff  in 
this  action,  complains  of  Thomas  Markham,  the  defendant,  for 
that  the  said  plaintiff  on  or  about  the  31st  day  of  May,  1851, 
was  lawfully  possessed  as  of  his  own  property,  of  one  large  gold 
English  lever  watch,  of  the  value  of  one  hundred  and  twenty-five 
dollars,  and  that  the  said  plaintiff,  on  or  about  the  time  above 
stated,  in  the  town  of  Perinton,  county  of  Monroe,  did  lend  said 
Avatch,  without'  any  consideration  therefor,  to  the  defendant  in 
this  action,  for  the  space  of  four  days,  with  the  promise  on  the 
part  of  the  defendant,  that  within  that  time  said  watch  should 
be  returned  to  the  plaintiff,  its  rightful  owner,  and  that  the  de- 
fendant Avell  knew  that  said  watch  was  the  property  of  and 
belonged  to  the  plaintiff,  but  fraudulently  intending  to  defraud 
and  deceive  the  said  plaintiff,  has  not  delivered  said  watch  to 
the  plaintiff,  although  often  requested  so  to  do,  but  has  con 
verted  and  disposed  of  said  property  to  his  own  use,  to  the  dam 
age  of  the  plaintiff  of  one  hundred  and  fifty  dollars :  where 
fore  the  above  named  plaintiff  demands  judgment  against  the 
above  named  defendant  for  the  sum  of  one  hundred  and  fifty 
dollars,  besides  costs." 

The  defendant  put  in  the  following  answer  :  •'  The  defend- 
ant for  answer  to  the  complaint  of  the  plaintiff,  says  that  he  is 
not  informed  and  cannot  state  whether  the  plaintiff,  on  or  about 
the  31st  day  of  May.  1851,  was  possessed  as  of  his  own  prop 


MONROE— SEPTEMBER,  1855.  345 

Elton  V.  Markham. 

erty  of  one  large  gold  English  watch.  And  the  defendant  fur- 
ther answering  specifically  denies  that  the  plaintifi",  on  or  about 
tiie  31st  day  of  May,  1851,  did  leave  such  watch  as  aforesaid, 
with  the  defendant  in  this  action  for  any  period,  with  the  prom- 
ise of  this  defendant  to  return  the  same  to  the  plaintiff.  And 
the  defendant  denies  all  fraudulent  intent  on  his  part  toward 
the  plaintiff,  or  any  unlawful  conversion  of  said  watch  to  his  own 
use.  The  defendant  further  answering,  says  that  the  plaintiff, 
on  or  about  the  31st  day  of  May,  1851,  at  the  place  in  said 
complaint  mentioned,  for  a  full  consideration,  agreed  to  be  paid 
by  the  defendant  to  the  plaintiff,  sold  and  delivered  the  said 
watch  to  the  defendant." 

The  plaintiff  replied,  denying  that  on  or  about  the  31st  day 
of  Maj"^,  1851,  or  at  any  other  time,  for  a  full  consideration,  or  for 
any  consideration,  agreed  to  be  paid  by  the  defendant,  the  plain- 
tiff sold  the  watch  mentioned,  to  the  defendant  ;  but  that  the 
defendant  wrongfully  and  unlawfully  converted  the  same,  while 
it  was  the  property  of  the  plaintiff.  On  the  trial,  at  the  Onta- 
rio circuit,  before  Justice  Taylor  and  a  jury,  the  plaintiff  gave 
no  evidence,  but  relied  upon  the  pleadings  to  recover,  claiming 
that  no  material  allegation  of  the  complaint  was  denied  by  the 
answer,  so  as  to  require  proof  from  the  plaintiff  to  entitle 
him  to  recover,  (fcc,  and  requested  the  court  so  to  hold.  The 
court  refused,  and  held  that  each  allegation  Avas  sujfficiently  de- 
nied to  require  proof  of  the  same,  by  the  plaintiff;  to  which 
ruling  the  plaintiff  by  his  counsel  excepted. 

The  jury  found  a  verdict  for  the  defendant ;  and  a  motioa 
having  been  made,  at  a  special  term,  for  a  new  trial,  upon  except 
tions,  the  same  was  denied. 

iS*.  F.  R.  Mallory,  for  the  plaintiff. 

J.  C.  Smith,  for  the  defendant. 

Bi/  the  Court,  T.  R.  Strong,  J.  It  was  insisted  on  the 
part  of  the  plaintiff  at  the  trial,  that  none  of  the  materia] 
allegations  in  the  complaint  were  controverted  by  the  answer 

Vol.  XX.  44 


346  CASES  m  the  supreme  court. 

Elton  V.  Markham. 

and  that  all  of  them  must,  therefore,  under  section  163  of  the 
code,  for  the  purposes  of  the  action,  be  taken  as  tioie  ;  hence 
that  upon  the  complaint  and  answer  the  plaintiflF  was  entitled 
to  a  verdict ;  and  the  justice  was  requested  by  the  plaintiff's 
counsel  so  to  decide.  The  justice  refused  thus  to  decide  ;  but 
on  the  contrary  decided,  that  said  allegations  Avere,  and  that 
each  of  them  was  sufficiently  denied  to  put  the  plaintiff  to  the 
proof  thereof,  and  that  without  proof  of  the  said  allegations, 
and  each  of  them,  the  plaintiff  could  not  recover.  An  excep- 
tion was  taken  on  the  part  of  the  plaintiff,  to  the  refusal  of 
the  justice  "  to  decide  and  hold  as  requested,  and  to  the  decision 
and  ruling  of  the  said  justice  as  above  stated."  It  is  manifest, 
that  the  refusal  to  decide,  in  accordance  with  the  proposition 
submitted — that  every  thing  material  in  the  complaint  was  ad- 
mitted, and  that  the  plaintiff  was  entitled  to  a  verdict — is  sub- 
stantially different  from  the  decision  thereupon  made — that  each 
material  allegation  must  be  proved,  in  order  to  maintain  the 
action.  The  refusal  was  correct,  if  proof  of  any  one  of  the  alle- 
gations was  necessary  to  entitle  the  plaintiff  to  a  verdict ;  the 
decision  following  it  was  erroneous,  unless  proof  of  all  that  are 
materinl  was  necessai-y.  But  as  the  exception  is  single — em- 
bracing both  the  refusal  and  the  subsequent  decision — unless 
both  were  erroneous,  the  exception  nmst  fail.  In  Jones  v.  Os- 
fJI'ood,  (2  iSelde7i,  233,)  it  was  held  that  "a  general  exception  to 
a  charge  and  every  part  of  it,  when  the  charge  involves  more 
than  a  single  proposition  of  law,  and  is  not  in  all  respects  erro- 
neous, presents  no  question  for  review  upon  appeal."  The  same 
doctrine  is  reiterated  in  Caldicell  v.  Murphy,  (1  Kernan,  416  ;) 
and  it  is  said  in  that  case,  in  reference  to  a  similar  exception  : 
"This  has  so  often  been  held  insufficient,  that  no  further  re- 
mark respecting  it  is  now  necessary."  Clearly,  upon  the  same 
principle,  a  single  exception  to  a  scries  of  decisions,  one  of 
which  is  correct,  is  unavailing. 

The  complaint  is  substantially,  that  the  plaintiff,  "  on  or  about 
the  31st  day  of  May,  1851,  was  lawfully  possessed  as  of  his 
own  property,  of  one  large  gold  English  lever  watch,"  stating  its 
value,  "and  that  the  said  plaintiff,  on  or  about  the  time  ah  ve 


MONROE— SEPTEMBER,  1855.  347 

Elton  V.  Markliam. 
. . /■ 

stated,  Sec,  "did  lend  said  watch,  without  any  consideration 
therefor,  to  the  defendant  in  this  action,  for  the  space  of  four 
lays,  with  the  promise,  on  the  part  of  the  defendant,  that,  with- 
in that  time  said  watch  should  be  returned  to  the  plaintiff,  its 
rightful  owner  ;"  it  is  then  charged  that  the  defendant  knew  the 
watch  was  the  property  of  the  plaintiff,  and  that  with  intent 
to  defraud,  &c.,  he  has  not  delivered  it  to  the  plaintiff,  although 
often  requested,  but  has  "converted  and  disposed  of  it  to  the 
defendant's  use,"  to  the  plaintiff's  damage  of  $150  j  and  judg- 
ment is  demanded  for  that  sum,  with  costs. 

It  does  not  appear  by  the  complaint,  that  the  watch  ever 
came  into  the  possession,  or  under  the  control  of  the  defendant, 
except  by  the  allegation  that  it  was  lent  to  him  by  the  plain- 
tiff. That  allegation  is  therefore  a  material  one.  It  was  not 
necessary  to  make  it ;  a  general  allegation  that  the  defendant 
had  the  watch  in  his  possession,  without  stating  how  he  ac- 
quired it,  would  have  been  sufficient  to  connect  the  defendant 
with  the  property ;  but  it  Avas  hecessary  to  connect  the  defend- 
ant with  it  in  some  way,  to  lay  a  foundation  for  the  allegation 
of  a  refusal  to  deliver  it  to  the  plaintiff  on  request,  and  of  a 
conversion ;  and  the  plaintiff  having  chosen  to  do  it  in  the  mode 
adopted,  and  in  no  other  mode,  the  allegation  employed  for 
the  purpose  is  an  issuable  allegation. 

The  third  paragraph  of  the  answer  is  in  these  words :  "And 
the  defendant  further  answering,  specifically  denies  that  the 
plaintiff,  on  or  about  the  31st  day  of  May,  1851,  did  leave  such 
watch  as  aforesaid  with  the  defendant  in  this  action,  for  anv 
period,  with  the  promise  of  this  defendant  to  return  the  same 
to  the  plaintiff."  This  is  bad  pleading  in  form ;  it  is  a  negative 
pregnant ;  the  denial  may  be  strictly  true,  and  yet  only  the 
time  stated  in  that  part  of  the  complaint  to  which  it  is  intend- 
ed to  apply — which  is  wholly  immaterial — be  wrong.  But  this 
form  of  pleading  was  formerly,  when  a  general  demurrer  would 
lie  for  defects  in  substance,  and  a  special  demurrer  was  re- 
quired for  formal  defects,  only  the  subject  of  a  special  demur- 
rer ;  and  unless  demurred  to  specially,  it  put  every  thing 
material  to  which  it  applied  in  issue.     ( GoulcPs  PL  ch.  6,  part 


348      CASES  m  the  supeeme  couet. 

Elton  V.  Markham. 

\  — ___ _ 

1,  §  29  to  36.  Bac.  Ab.  tit.  Pleas  and  Pleading's,  6.)  Al 
though  still  objectionable,  it  cannot,  I  think,  be  said  that  it 
does  not  controvert  the  allegation  to  which  it  relates,  within 
the  meaning  of  section  168  of  the  code.  It  is  an  informal  de- 
nial, and  unless  objection  is  made  for  defect  of  form,  before 
the  trittl,  it  will  be  waived,  and  each  allegation  will  be  regard- 
ed as  controverted.  One  mode  of  objecting  to  such  a  defect  is, 
I  think,  by  motion,  under  section  160  of  the  code,  the  last 
clause  of  which  provides  that  "when  the  allegations  of  a  plead- 
ing are  so  indefinite  or  uncertain  that  the  precise  nature  of 
the  charge  or  defense  is  not  apparent,  the  court  may  require 
the  pleading  to  be  made  definite  and  certain  by  amendment.'' 
Whether  that  is  the  only  mode,  it  is  not  necessary  now  to 
decide. 

Overlooking  the  defect  of  form,  which  has  been  considered, 
I  think  the  portion  of  the  answer  above  given,  substantially 
controverts  the  allegation  in  the  complaint,  of  the  lending  of 
the  watch  to  the  defendant.  Webster's  definition  of  the  word 
"lend"  is,  "1.  To  grant  to  another  for  temporary  use,  on  the 
express  or  implied  condition  that  the  thing  shall  be  returned, 
as  to  lend  a  book."  A  "loan  for  use"  is  defined  by  writers  on 
the  law  of  bailment  to  be  "a  bailment  of  goods  to  be  used  by 
the  bailee  temporarily,  or  for  a  certain  time,  without  reward." 
{Story  on  Bailment,  §  6,  219,  220.)  Thus  understanding  the 
term  "lend"  in  the  complaint,  the  delivery  of  the  watch  to  the 
defendant,  and  his  promise  to  return  it,  are  included  in  the 
allegation  that  the  plaintijBF  lent  the  watch  to  the  defendant. 
Tht  answer,  instead  of  a  literal  denial,  negativing  the  allega- 
tion in  the  words  of  it,  denies  that  the  plaintiff  did  leave  the 
watch  with  the  defendant  for  any  period,  with  his  promise  to 
return  it.  This  meets  the  substance  of  the  allegation,  and  puts 
it  in  issue. 

The  first  paragraph  in  the  answer  is,  that  the  defendant  "  is 
not  informed  and  cannot  state,"  Avhether  the  plaintiflF  was,  at 
the  time  stated  in  the  complaint,  possessed  as  of  his  own  prop- 
erty of  the  watch.  The  code  does  not  warrant  this  form  of 
denial.     A  denial  must  be  general  or  specific,  or  it  must  be 


MO^^  ROE— SEPTEMBER,  1855.  349 

Elton  V.  Markham. 

"  of  any  knowledge  or  information,  (fee.  sufficient  to  form  a  bie- 
licf.'^  The  third  paragraph  denies  all  fraudulent  intent  on  the 
part  of  the  defendant,  "  or  any  ulawful  conversion  of  said  watch 
to  his  own  use."  The  denial  of  the  intent  forms  no  material 
issue  ;  and  the  denial  of  any  unlawful  conversion  was  not  in- 
tended to  controvert  that  the  defendant  actually  converted  and 
disposed  of  the  property  to  his  own  use,  but  simply  the  unlaw- 
fulness of  what  he  did.  This  is  apparent  from  the  fourth  and 
last  paragraph  of  the  answer,  which  is,  that  the  "  plaintiff,  on 
or  about  the  31st  day  of  May,  1851,  &c.,  sold  and  delivered  the 
said  watch  to  the  defendant."  And  the  whole  answer  must 
be  regarded  in  giving  a  construction  to  any  part  of  it.  The 
answer  does  not  purport  to,  and  does  not  in  fact,  set  up  sepa- 
rate defenses.  The  several  denials  and  the  new  matter  are 
designed  to  aid  and  support  each  other. 

It  is  contended  on  the  part  of  the  plaintiff,  that  the  conclu- 
ding part  of  the  answer,  alleging  a  sale  and  purchase,  is  in- 
consistent with  the  allegation  in  the  complaint,  of  a  bailment, 
and  therefore  a  denial  of  it.  If  the  supposed  inconsistency  ex- 
isted, without  some  further  denial,  no  proof  of  the  bailment 
would  have  been  requisite  on  the  part  of  the  plaintiff  in  the  first 
instance  ;  he  would  have  been  entitled  to  recover,  unless  the 
defendant  established  the  new  matter  of  a  sale  and  purchase, 
brought  forward  by  him  in  his  defense  ;  the  burden  of  proof  as 
to  which  was  upon  him.  But  the  complaint  and  answer,  in  the 
respect  alluded  to,  are  not  necessarily  inconsistent.  For  ought 
that  appears  on  the  face  of  the  pleadings,  the  sale  was  subse- 
quent to  the  bailment. 

There  being  one  material  issue  formed  by  the  mere  denials  ia 
the  answer,  the  exception  taken  must  be  overruled,  and  the 
judgment  affirmed. 

[Monroe  General  Term,  September  3,  1855.  Selden,  Welles  and  T.  R 
Strong,  Justices.] 


350  OASES  IN  THE  SUPREME  COURT. 


Foster  vs.  Pettibone. 

Trespass  cannot  be  maintained  by  the  owner  of  goods,  against  a  sheriff,  for  taking 
them  under  and  pursuant  to  a  writ  of  replevin  against  another  person  having 
the  goods  in  possession.     Johnson,  J.,  dissented 

The  law  fully  recognizes  the  owner's  right,  and  if  he  can,  without  force,  obtain 
the  property,  will  not  hold  him  a  wrongdoer  for  taking  it ;  but  it  withholds 
from  him  an  affirmative  remedy  by  action  against  a  ministerial  officer  ;  allow- 
ing him  an  action  only  against  other  persons  concerned  in,  or  who  instigated, 
the  taking. 

APPEAL  ]}j  the  plaintiff,  froin  a  judgment  entered  at  a  spe- 
cial term,  upon  the  report  of  a  referee.  The  action  -was 
trespass  for  taking  a  quantity  of  flour.  The  referee  nonsuited 
the  plaintiff,  on  the  ground  that  the  defendant  having  acted  in 
the  premises  by  the  command  of  a  writ  of  replevin,  was  justified 
thereby,  and  was  not  liable  to  the  plaintiff  in  this  action.  Th(( 
opinion  of  the  court  states  all  the  facts  that  are  material. 

John  N.  Pomeroy,  for  the  appellant.  I.  An  acfion  of  tres- 
pass can  be  maintained  by  the  plaintiff  against  the  defendant, 
for  taking  the  property  of  the  plaintiff  upon  the  writ  of  replevin, 
issued  in  the  suit  against  David  S.  Baker.  It  is  a  general  prin- 
ciple of  the  law,  that  the  owner  of  property  is  protected  from 
intrusions  upon  it  by  third  persons.  He  is  entitled  to  its  un- 
molested possession,  enjoyment  and  disposition,  and  any  one  un- 
dertaking to  exercise  control  or  dominion  over  it,  whether  he  be 
an  officer,  or  other  person,  acts  at  his  own  peril.  The  law  gives 
the  owner  of  chattels  a  remedy  by  action  against  a  trespasser, 
or  he  may  retake  them,  peaceably,  without  process.  These  are 
general  and  elementary  principles,  and  unless  the  defendant  is 
protected  by  other  rules  of  law,  he  must  be  answerable  to  the 
plaintiff  for  his  trespass.  We  will  inquire  whether  he  is  thus 
protected.  (1.)  The  defendant  is  not  protected  by  the  rule  that 
ministerial  officers  may  justify  acts  done  under  process  regular 
on  its  face.  This  principle  is  a  familiar  one,  but  it  does  not  ap- 
ply to  the  case  presented  in  this  action.  The  plaintiff  in  the 
replevin  suit,  and  all  other  persons  engaged  in  the  taking,  except 
the  sheriff,  are  confessedly  liable  in  an  action  of  trespass,  to  the 


MONROE— SEPTEMBER,  1855.  351 

Foster  v.  Petlibone. 

owner  of  the  goods.     {Shipman  v.  Clark,  4  Denio,  446.)     It  18 

f>.  common  principle  that  the  sheriff  is  liable  to  the  owner  of 
goods  taken  under  execution,  regular  on  its  face,  issued  in  an 
action  against  a  third  person,  directing  the  officer  to  take  the 
chattels  of  such  defendant.  There  can  be  no  true  distinction 
made  between  the  ca^e  of  a  sheriff  taking  a  stranger's  goods 
under  an  execution  and  under  a  writ  of  replevin.  This  distinc- 
tion has  been  raised,  and  relied  on,  and  is  the  gist  of  all  reason- 
ing against  the  liability  of  the  sheriff.  In  the  case  of  Shipman 
V.  Clark,  (4  Denio,  446,)  Bronson,  J.,  very  cautiously  says, 
"  But  in  replevin,  when  the  command  of  the  writ  is  to  replevy 
and  deliver  certain  specified  chattels,  the  process  ma]/  be  a  suf- 
ficient protection  to  the  officer,  though  he  take  the  chattels  from 
the  possession  and  they  be  the  property  of  one  who  is  a  stranger 
to  the  writ."  and  cites  Hallet  v.  Byrt,  {Carthew,  380.)  These 
cases  are  all  that  can  be  found  in  the  reports  upon  this  point. 
It  is  only  necessary  to  say  of  these  opinions  that  they  are  en- 
tirely oWter.  Judge  Bronson's  dictum  was  only  intended  to  be 
obiter,  and  is  placed  by  the  reporter  under  a  semble.  The  case 
in  Carthew  called  for  no  such  line  of  observation  as  the  judge 
adopted,  and  he  argued  entirely  upon  a  hypothetical  state  of 
facts.  The  case  involved  two  questions,  (1.)  whether  the  plea 
gave  color,  and  (2.)  whether  the  custom  pleaded  was  legal,  and 
.  both  were  negatived.  These  cases^then  have  no  binding  dutfcor- 
ity  as  precedents.  But  Ave  deny  upon  general  principles,  that 
the  distinction  they  attempted  to  raise  is  a  sound  one.  An  ex- 
ecution directs  the  sheriff  to  levy  upon  and  sell  the  goods  and 
chattels  which  are  the  'property  of  the  defendants.  It  does  not 
specify  any  particular  goods  and  cl^ttels,  but  the  force  of  the 
writ  is  the  same  as  though  a  general  inventory  should  be  incor- 
porated into  it,  purporting  to  give  a  schedule  of  the  goods  which 
were  the  property  of  the  defendant.  The  case  states  that  the 
writ  of  replevin,  "directed  the  defendant  in  this  action  [the 
sheriff,]  to  take  the  said' goods  and  chattels  as  the  property 
if  the  said  John  G.  Brown,"  who  was  made  plaintiff  in  the  re- 
plevin suit.  Now,  unlike  the  writ  of  execution,  which  is  against 
all  the  property  generally  of  a  defendant,  the  writ  of  replevin 


352  CASES  m  THE  SUPREME  COURT. 

Foster  v.  Pettibone. 

limits  the  sheriff  to  take  particular  ffoods  as  the  prtrperti^  of 
the  plaintiff  in  the  replevin  suit.  The  goods  to  be  replevied 
are  inventoried  or  specified,  but  still  have  upon  them  the  limita 
tion  of  beins:  the  property  of  the  plaintiff  in  the  replevin  suit, 
and  the  sheriff  is  bound  by  two  restrictions,  viz :  he  must  take 
only  the  goods  pointed  out,  and  those  goods  must  be  the  prop- 
erty of  the  person  suing  out  the  writ  of  replevin.  Under  an  ex- 
ecution the  goods  are  not  specified  ;  the  sheriff  has,  as  it  were,  a 
general  inventory  to  choose  from,  but  he  is  also  under  the  limit- 
ation of  the  goods  being  the  property  of  a  particular  person, 
viz  :  of  the  defendant  in  the  execution.  If  a  sheriff  in  executing 
a  writ  of  execution,  seizes  goods  which  are  the  property  of  a 
stranger,  he  oversteps  the  limits  of  bis  authority,  and  invades 
the  rights  of  that  third  party.  If  the  sheriff,  in  executing  the 
writ  of  replevin,  seizes  either  any  goods  not  specified,  or  any  of 
the  goods  which  are  specified,  and  which  are  the  property  of  a 
stranger,  he  also  oversteps  the  limits  of  his  authority,  and  in- 
vades the  rights  of  that  third  party.  It  is  conceded  that  the 
sheriff  is  liable  in  the  former  case,  and  we  are  able  to  see  no 
distinction  between  the  two,  to  relieve  him  from  liability  in  the 
latter. 

II.  The  sheriff  is  not  protected  by  the  provisions  of  the  stat- 
ute directing  replevins,  if  he  seizes  the  property  of  a  stranger 
to  the  replevin  suit.  The  referee,  in  deciding  the  motion  for  a 
nonsuit,  relied  entirely  upon  the  statute,  and  it  may  be  well  to 
examine  its  provisions.  The  revised  statutes,  tit.  12,  ch.  8,  part 
3,  relate  to  replevins.  The  first  seven  sections  regulate  the 
commencement  of  suit,  the  8th  directs  the  sheriff  to  execute  the 
writ,  the  13th  to  17th  relate  to  conflicting  claims  of  property. 
The  13th  section  provides,  that  "  If  the  defendant,  or  any  other 
person,  who  may  be  in  possession  of  the  goods  and  chattels  spe- 
cified in  the  writ,  shall  claim  property  therein,  or  in  any  part 
thereof,"  they  may  procure  a  jury  to  be  summoned  by  the  sher- 
iff, to  try  the  claim.  The  14th  and  15th  sections  relate  to  pro- 
ceedings before  the  jury.  By  the  16th  the  sheriff  is  directed  to 
deliver  the  goods  to  the  plaintiff  in  the  replevin,  if  the  jury  shall 
find  that  the  property  is  not  in  the  claimant,  and  by  the  17tb 


MONROE— SEPTEMBER,  1855.  353 

Foster  v.  Pettibone. 

the  sheriflf  "  shall  not  deliver  the  same  unless  the  plaintiff  shall 
indemnify  the  sheriff,"  when  the  jury  shall  find  that  the  prop- 
erty is  in  the  claimant.  These  are  all  the  provisions  in  regard 
to  conflicting  claims.  (1.)  Under  these  sections  the  present 
plaintiff  was  not  empowered  to  interfere  and  claim  the  property 
seized  by  the  sheriff.  The  referee  says  in  his  opinion,  that  "  it 
was  clearly  competent  for  the  defendant  in  the  replevin,  or  the 
plaintiff  in  this  action  to  have  interposed  his  claim  to  the  prop- 
erty ;"  and  "  It  is  difficult  to  see  how  he  [the  sheriff]  can  be 
made  liable  in  case  where  no  claim  whatever  has  been  inter- 
posed, where  he  has  no  indemnity,  and  no  right  to  exact  any." 
The  error  into  which  the  referee  fell,  was  in  assuming  that  the 
plaintiff  could  interpose  his  claim  of  property.  The  statute  no- 
where authorizes  him  to  do  so.  That  privilege  is  given  to  the 
defendant  in  the  replevin  suit,  and  to  any  other  person  who  may 
be  in  possession  of  the  chattels  specified  in  the  writ.  The  whole 
tenor  of  the  statute  shows  that  the  possession  intended  is  an 
actual  possession.  In  this  case  the  owner  of  the  property  was 
neither  the  defendant  in  the  replevin  suit,  nor  was  he  in  posses- 
sion of  the  property,  and  the  statute  makes  no  provision  for  him. 
In  the  case  of  S'timpson  v.  Reynolds,  (14  Barb.  510,)  a  case  vt  ry 
similar  to  the  present  one,  Judge  Wright,  in  giving  the  opinion 
of  the  court,  says,  "  It  is  argued  that  the  plaintiff  in  this  case 
might  have  put  in  a  claim  of  property,  or  have  prosecuted  the 
plaintiff  in  the  writ  of  replevin,  in  trespass  or  ti'over.  But  could 
he  have  put  in  a  claim  under  the  statute  l  He  was  neither  a 
defendant  in  the  replevin  suit,  nor  was  he  in  possession  of  the 
goods,  and  these  are  the  only  persons  that  by  the  statute  may 
interpose  the  claim."  The  code  has  altered  the  law  in  regard 
to  the  claims  of  third  persons  in  replevins,  and  has  la;-gely  ex- 
tended the  right  to  interpose  the  claim.  {Code,  §  216.)  (2.)  But 
if  the  plaintiff  was  empowered  to  interpose  his  claim  to  the  prop- 
erty, and  to  demand  a  sheriff's  jury  to  try  the  title  to  the  prop 
erty,  his  neglect  to  do  so  does  not  prevent  him  from  resorting  to 
any  other  legal  remedy.  (3.)  The  sheriff  is  not  bound  to  exe- 
cute the  writ  absolutely,  and  without  remedy  or  protection.  The 
referee  in  his  opinion  assumes  and  proceeds  entirely  upon  the 
Vol.  XX.  45 


354  CASES  IX  THE  SUPREME  COURT. 

Foster  v.  Pettibone. 

idea  that  the  sheriff  can  require  no  indemnity,  and  must  ibso 
lutcly  take  possession  of  the  goods  as  directed  by  the  writ,  and 
that  he  cannot  be  liable  for  acts  which  the  statute  directed  him 
to  do,  without  any  opportunity  of  his  procuring  security  for  him- 
self The  sheriff  is  nowhere  bound  to  seize  the  goods  if  he  has 
reason  to  suppose  that  they  are  the  property  of  another.  He 
may  in  all  cases  protect  himself  by  calling  a  sheriff's  jury  to 
try  the  title  of  property  against  which  process  is  issued.  We 
esteem  this  to  be  a  common  law  right  of  sheriffs,  and  at  all 
events  it  is  their  practice.  But  are  not  sheriffs  protected  by 
the  bonds  they  were  required  to  take  under  the  provisions  of 
the  revised  statutes?  Such  bonds  were  executed  to  the  sheriff, 
with  securities  to  be  approved  by  him,  and  conditioned  that  the 
plaintiff  would  prosecute  the  suit  to  effect  without  delay,  and 
would  return  the  property,  if  return  thereof  was  adjudged,  and 
would  pay  to  the  defendant  such  sums  of  money  as  should  be 
recovered  against  him  for  any  cause  whatever.  It  seems  to  us 
that  the  provisions  of  this  bond  enure,  to  the  benefit  of  the  sheriff, 
and  that  he  is  protected,  or  can  protect  himself  under  it.  This 
defendant  cannot  complain  that  he  is  bound  without  any  remedy 
or  security  to  execute  this  writ,  and  that?  he  should  not  be  liable 
for  his  trespasses  done  in  obeying  the  statute,  for  we  have  seen 
that  he  may  protect  himself  by  a  jury,  and  that  he  always  takes 
a  bond,  by  virtue  of  which  he  may  indenxnify  himself  for  his  acts. 
(4.)  If  this  plaintiff  cannot  maintain  this  action  he  is  remediless. 
That  the  plaintiff's  rights  have  been  invaded,  there  can  be  no 
question,  and  the  law  will  certainly  give-  him  a  relief  The 
plaintiff  was  not  made  a  party  in  the  original  replevin  suit,  and 
had  no  power  to  appear  in  it.  He  had  no  right  under  the  stat- 
ute to  appear  before  the  sheriff  and  interfere — the  goods  were 
not  in  his  possession — they  were  seized  in  a  proceeding  to  which 
he  was  a  stranger,  and  of  which  he  was  entirely  ignorant,  and  it 
is  a  mockery  to  say  that  he  cannot  claim  reparation  from  the 
parties  doing  the  wrong.  The  person  suing  out  the  replevin 
writ  may  be  entirely  irresponsible,  and  if  the  rule  claimed  on 
the  part  of  the  defendant  be  the  true  one,  the  plaintiff  must  lose 
his  property. 


MONROE— SEPTEMBER,  1855.  3.5.5 


Foster  v.  Pettibone. 


Ill  This  plaintiff  niight  have  peaceably  retaken  the  floui 
replevied,  while  in  the  hands  of  the  sheriff  or  of  the  plaintiff 
to  whom  the  sheriff  had  delivered  it,  without  process,  and  he 
inay  enforce  the  same  right,  if  need  be,  by  action.  It  is,  ■vtith- 
out  question,  true  that  an  action  confers  no  new  rights  upon  a 
party  ;  it  is  only  a  method  of  enforcing  through  the  means  of  a 
court,  rights  which  before  existed.  And  it  is  also  true,  as  a 
general  rule,  that  when  a  party  has  a  right  he  shall  have  the 
power  to  enforce  it.  It  can  hardly,  then,  be  denied,  that  if  the 
party  plaintiff  could  retake  the  replevied  goods  peaceably  from 
the  possession  of  the  sheriff,  he  can  also  have  an  action  of  trespass 
against  the  sheriff  for  taking  the  same  goods.  The  action  does 
not  increase  or  add  to  the  plaintiff's  right  to  the  goods:  it  is 
only  a  means  of  vindicating  or  enforcing  that  right,  and  the 
right  to  the  action  logically  follows  the  right  to  the  property. 
If  the  plaintiff  may  retake  the  goods  from  the  sheriff's  hands, 
it  is  because  that  officer  has  no  lawful  claim  upon  them,  and  no 
power  to  keep  them,  and  therefore  is  a  trespasser  from  the  be- 
ginning in  taking  them,  and  if  a  trespasser,  then  liable  to  this 
notion  for  trespass.  It  would  be  absurd  and  self  contradictory 
to  allow  the  right  to  the  plaintiff  to  retake  the  goods,  and  deny 
him  the  privilege  of  bringing  an  action  for  the  original  seizure. 
Can  the  owner  then  retake  the  property  peaceably  from  the  hands 
of  the  sheriff  without  process  1  We  answer  that  he  can,  and 
for  the  following  reasons  :  (1.)  Upon  tha  general  principles  of 
the  rights  accruing  to  the  ownership  of  property,  when  that 
ownership  has  been  violated.  (2.)  The  objection  that  the  writ 
of  replevin  is  issued  upon  proof  made,  as  to  the  property,  and 
in  a  quasi  judicial  proceeding,  can  have  no  foundation  upon  the 
general  principles  of  law,  for  the  real  owner  was  not  at  all  a 
party  to  this  proceeding,  and  is  not,  then,  in  the  least  concluded 
or  affected  by  this  pi'oceeding,  and  would  not  be,  even  were  it 
a  solemn  judgment  of  a  court.  This  is  one  of  the  most  elemen- 
tary principles  of  law.  (3.)  The  statute  forbidding  counter 
replevins,  which  is  but  declaratory  of  the  common  law,  is  only 
intended  to  prevent  the  defendant  in  the  replevin  suit  from  re- 
sorting to    the    same  process,  when  he  can   have   all  matters 


356  CASES  IN  THE  SUPREME  COUPwT. 

Foster  v.  Pcttibone. 

adjusted  in  the  original  suit,  and  does  not  affect  the  rights  c  f 
third  parties,  strangers  to  the  suit,  who  may  be  owners  of  the 
property.  (4.)  The  rights  of  the  sheriff  are  no  more  than  those 
of  the  plaintiff  in  the  replevin  suit,  and  the  owner  of  the  goods 
would  have  the  same  claim  against  the  goods  in  the  hands  of 
either.  In  the  case  of  Spencer  v.  McGowan,  (13  Wend.  25G,) 
it  is  decided  that  the  owner  of  personal  property,  left  in  the 
possession  of  a  third  person,  may,  by  his  own  act,  repossess 
himself  of  such  property,  although  it  be  taken  from  the  posses- 
sion of  such  third  person  by  virtue  of  a  writ  of  replevin.  This 
case  virtually  decides  the  right  of  the  owner  of  replevied  prop- 
erty to  retake  it,  in  whosever  hands  it  may  be,  if  he  can  do  it 
peaceably,  and  if  he  may  do  this,  his  right  to  an  action  is  clear. 
IV.  The  only  case  in  point  upon  this  question,  in  the  Eng~ 
lish  or  American  reports,  maintains  the  rights  of  this  plaintiff 
against  the  sheriff  in  their  fullest  extent.  The  cases  already 
cited  from  Carthew  and  Denio  are  all  that  we  have  been  able 
to  find,  after  very  careful  search,  with  the  exception  of  the  case 
lately  decided  of  Stirnpson  v.  Reynolds,  (14  Barb.  506 )  In 
this  case,  flour,  which  was  the  property  of  the  plaintiff,  had 
been  taken  by  the  sheriff  under  a  writ  of  replevin,  issued  in  a 
suit  in  which  third  parties  Avere  plaintiffs,  and  the  warehouse 
keeper,  in  which  the  flour  Avas  stored,  Avas  defendant.  The 
OAvner  brought  trover  against  the  sheriff.  A  referee  decided 
in  faA^or  of  the  owner,  against  the  sheriff,  and  the  defendant  ap- 
pealed to  the  general  terra,  Wright,  Harris  and  Parker,  Js. 
Mr.  Justice  Wright  delivered  the  opinion  of  the  court,  affirming 
the  judgment,  and  he  assumed  that  the  case  involved  just  the 
question  presented  by  this  action,  and  discussed  that  question, 
and  decided  that  question.  The  broad  doctrine  Avas  laid  doAvn 
that  the  sheriff  Avas  liable  in  an  action  by  the  OAvner  of  the 
property  taken  under  a  writ  of  replevin  issued  in  the  suit  of  a 
third  person.  This  case  controls  and  governs  the  decision  of 
the  present  question,  and  has  no  decision  opposed  to  it,  and  un- 
less this  court  expressly  overrules  it,  they  must  reverse  the 
judgment  below,  and  order  a  new  trial. 


MONEOE— SEPTEMBER,  1855.  357 


Foster  v.  Pettibone. 


Geo.  Rathbiin,  for  the  respondent.  The  act  for  which  the 
defendant  was  sued  in  tins  case,  was  :  (1.)  An  official  act  as 
sheriff.  (2.)  It  was  done  in  obedience  to  the  positive  directions 
and  requirements  of  the  statute.  (3.)  The  law  left  to  the  de- 
fendant no  option,  or  discretion,  in  any  respect.  (4.)  He  was 
compelled  by  law  not  6nly  to  do  the  act  complained  of,  but  to 
do  it  precisely  as  he  did.  He  is,  therefore,  protected  by  his 
office  and  Avrit,  as  held  by  the  referee.  The  non  suit  was  right. 
{Shipman  v.  Clark,  4  Denio,  446.  Hallet  v.  Byrt,  Carthew, 
380.  Savacool  v.  Boughton,  5  Wend  170.  2  R.  S.  523, 
§  6,  ^'c.)  The  case  of  Stimpson  v.  Reynolds,  (14  Barb.  506,) 
was  a  mere  dictum.  The  case  turned  upon  the  point  that  it 
was  not  proved  that  the  sheriff  took  the  identical  property  de- 
scribed in  the  writ.  It  could  not,  therefore,  protect  him.  The 
opinion  of  Mr.  Justice  Wright,  is  his  individual  opinion,  and  not 
the  judgment  of  the  court. 

T.  R.  Strong,  J.  This  is  an  action  of  trespass,  commenced 
before  the  code,  for  the  taking  by  the  defendant,  of  a  quantity 
of  flour,  the  property  of  the  plaintiff.  The  defendant,  at  the 
time  of  the  taking,  was  sheriff  of  the  county  of  Cayuga,  and 
took  the  flour  from  the  possession  of  one  Baker,  under  and  by 
virtue  of  a  writ  of  replevin,  issued  in  a  siiit  in  favor  of  one 
Brown  against  Baker,  .directed  to  him,  and  requiring  him  to 
take  the  propert}^  The  writ  is  not  set  forth  in  the  case,  but  it 
is  stated  that  it  required  the  defendant  to  take  the  flour,  "  as 
the  property  of  the  said  John  G.  Brown."  I  understand  from 
this  statement  of  the  writ,  not  that  the  command  was  in  those 
words,  but  that  the  w"rit  recited,  in  the  ordinary  form,  a  com- 
plaint by  the  plaintiff  therein,  of  the  taking  of  his  flour,  de- 
sciibing  it,  and  then  commanded  the  sheriff,  if  security  should 
be  given  (fee,  to  cause  the  same  flour  to  be  replevied.  (2  R.  /S*. 
523,  k  6.  Yates'  PI.  539.)  It  is  not  material,  hoAvever,  in 
which  of  these  forms  the  requirement  to  take  the  property  was, 
as  there  is  not,  in  my  opinion,  any  substantial  difference  between 
them.  The  question  in  the  case  to  be  decided  is,  whether  the 
present  defendant  is  liable  as  a  trespasser,  to  the  present  plaintiff, 


358  CASES  IN  THE  SUPREME  COURT 

Foster  v.  Pettibone. 

the  owner  of  the  flour,  for  taking  it  as  sheriff  in  obedience  to 
the  writ ;  or  in  other  words  whether  trespass  can  be  maintained 
by  the  owner  of  goods  against  a  sheriff,  for  taking  them  under 
and  pursuant  to  a  writ  of  replevin  against  another  person  hav- 
ing the  goods  in  possession. 

In  Hallett  v.  Byrt,  {Carthew,  380,)  which  was  an  action  of 
trespass  for  taking  three  cows,  the  defendant  pleaded  specially, 
setting  up  a  justification  under  a  precept  in  replevin.  The 
plaintiff  demurred,  assigning  for  cause,  that  the  plea  amounted 
to  the  general  issue,  and  the  demurrer  was  sustained  for  the 
reason  stated,  and  also  because  a  prescription  relied  upon  in 
the  plea  as  authorizing  the  process  of  replevin  was  void.  In 
respect  to  the  first  cause,  Holt,  Ch.  J.,  said,  '-If  the  defendants 
had  admitted  a  bare  possession  (fcc,  that  would  have  been 
a  sufficient  color  for  the  defendants  to  justify  specially  under 
the  precept  for  replevin,  because  the  cows  were  especially  men- 
tioned in  the  precept,  and  they  were  commanded  to  take  them, 
and  therefore  they  might  justify  the  taking  &.c.,  although 
the  property  was  not  in  that  person  who  brought  the  replevin. 
And  no  action  of  trespass  will  lie  against  the  defendants  (the 
officers)  for  taking  goods  or  chattels,  by  virtue  of  a  replevin, 
unless  he  who  hath  possession  claims  a  property  when  the  offi- 
cers come  to  demand  them,  and  they  take  them  notwithstanding 
such  claim  of  property,  and  this  special  matter  must  come  in  by 
way  of  replication  by  the  plaintiffs.  And  so  there  is  a  differ- 
ence between  a  replevin  and  other  process  of  law,  with  respect 
to  the  officers,  for  in  the  first  case,  viz  :  in  the  replevin,  they 
are  expressly  commanded  to  take  that  in  specie,  but  in  writs  of 
execution  the  words  are  general,  viz  :  to  levy  of  the  goods  of 
the  party,  and  therefore  it  is  at  their  peril  if  they  take  another 
man's  goods,  for  in  that  case  an  action  of  trespass  will  lie."  In 
Shipman  v.  Clark,  (4  Detiio,  446,)  which  was  an  action  of 
trespass  for  taking  timber  (fcc,  the  defense  at  the  trial  was, 
that  the  timber  was  taken  under  a  writ  of  replevin  in  favor  of 
Clark  against  one  Scott,  and  delivered  by  the  sheriff  to  Clark. 
&c.  who  drew  it  away.  Bronson,  Ch.  J.,  says  :  "  On  an  execu 
tion  against  the  goods  of  A.  the   officer  acts  at  his   peril   if  he 


MONROE— SEPTEMBER,  1355.  359 

'  Foster  v.  Pettibone. 

takes  i/lie  goods  of  B.  But  in  replevin,  where  the  command  of 
the  writ  is  to  replevy  and  deliver  certain  specified  chattels,  the 
process  may  be  a  sufficient  protection  to  the  officer,  though  he 
take  the  chattels  from  the  possession,  and  they  be  the  property 
of  one  who  is  a  stranger  to  the  writ.  (Hallett  v.  Byrt,  Car- 
thew,  380.)  But  in  such  a  case,  the  process  can  be  no  justifi- 
cation to  the  plaintifl'  in  the  replevin,  or  to  those  who  act  under 
his  authority,  in  removing  the  goods.  It  would  be  strange  in- 
deed, if  a  man  could  sue  out  a  writ  against  A.  and  take  the 
goods  of  B.  with  impunity.  The  person  whose  goods  are  taken 
is  not  confined  to  a  claim  of  property  before  the  sherifi',  but 
may  have  the  usual  remedy  by  action,  or  retake  the  goods 
without  process  if  he  can  do  it  peaceably.  {Spencer  v.  McGow 
an,  13  Wend.  256.)  In  Stimpson  v.  Reynolds,  (14  Barb. 
506;)  which  was  an  action  of  trover  for  flour,  and  the  defense 
was  that  it  was  taken  by  the  defendant  as  sheriff,  under  a  writ 
of  replevin,  the  court  refused  to  set  aside  a  report  of  a  referee 
in  favor  of  the  plaintiff,  on  the  ground  that  it  did  not  appear 
that  the  property  taken  was  the  identical  property  described  in 
the  writ,  and  also  expressed  the  opinion  after  a  brief  discussion 
of  the  point,  that  if  it  had  been  made  to  appear,  the  defendant 
would  not  "  have  been  shielded  or  protected  by  the  process  in 
taking  the  property  of  the  plaintiff,  who  was  in  no  way  a  party 
to  the  action.* 

No  other  case  has  been  cited  by  the  counsel,  or  has  come  to 
my  notice,  in  which  the  question  now  presented  has  arisen. 
The  counsel  for  the  plaintiff,  in  his  elaborate  and  learned  print- 
ed argument,  and  Justice  Wright  in  Stirnpson  v.  Reynolds, 
say  there  is  no  other  case  on  the  point,  in  the  books.  It  uill 
be  observed,  that  it  was  not  necessary  to  pass  upon  the  question 
in  either  of  the  cases  referred  to.  The  question  is  therefore 
entirely  open,  in  respect  to  authority. 

It  is  a  consideration  entitled  to  no  small  weight  against  the 
right  of  action,  that  often  as  property  has  been  seized  under  a 
-writ  of  replevin  issued  therefor  which  belonged  to,  or  was 
claimed  by,  some  other  person  than  the  parties,  no  case  can  he 
found  in  Avhich  a  recovery  against  the  officer  who  served  the 


360  CASES  IN  THE  SUPREME  COURT. 


Foster  r.  Pettibone. 


writ,  as  a  -wrongfloer,  has  been  permitted.  The  fact  is  a  strik 
ing  testimony  to  the  prevalence  of  an  opinion  among  the  pro- 
fession, ever  since  the  action  of  replevin  has  existed,  that  no 
liability  is  incurred  by  the  officer  by  acts  done  by  him  in 
obedience  to  the  process. 

There  would  be  a  flagrant  inconsistency,  in  holding  that  an 
officer  of  the  law  may  be  liable  in  tort,  for  taking  property 
which  by  law  he  was  commanded  to  take,  when  he  kept  strictly 
within  the  limits  of  his  process,  in  compelling  the  commission 
of  a  wrong  and  enforcing  a  responsibility  for  it ;  but  I  do  not 
see  why  this  doctrine  would  not  be  involved  in  the  maintenance  of 
the  action.  The  property  taken  was  specified  irt  the  writ ;  the 
writ  contained  a  command  to  take  it,  which  was  absolute  and 
unqualified  ;  no  direction  was  given  to  the  sheriff  to  inquire 
into  the  right  of  property  before  seizure  ;  no  means  are  pro- 
vided b}'  the  statute  for  such  an  inquiry',  except  on  a  claim  of 
property  being  interposed  ;  and  I  know  of  no  authority  for 
such  a  proceeding  in  any  other  case.  The  proceedings  in  the 
action  of  replevin,  are  almost  wholly  regulated  by  statute,  and 
if  such  an  authority  in  the  sheriff  had  been  contemplated  by 
the  legislature,  some  reference  would  have  been  made  to  it,  in  the 
form  prescribed  for  the  writ,  or  in  some  provision  for  the  exercise 
of  the  authority.  Not  only  is  there  no  such  provision,  but  the 
statute  in  terms  commands  the  sheriff,  upon  the  receipt  of  the  writ 
with  the  affidavits  and  bond,  to  "forthwith  proceed  to  execute 
the  writ,  by  delivering  possession  of  the  property  named  therein 
to  the  plaintiff,"  &.c.  There  is  no  force  in  the  position  that  the 
command  in  the  writ  is  limited  to  the  property  of  the  plaintiff 
therein,  by  the  direction  to  take  it  as  his  property.  An  affidavit 
of  property  was  required,  to  authorize  the  writ,  and  the  plaintiff 
had  by  compliance  with  the  law,  entitled  himself  to  have  the  spe- 
cific property,  before  the  officer  of  the  law  was  called  upon  to  exe- 
cute the  process.  The  sheriff  was  to  take  the  goods  as  the  prop- 
erty of  the  plaintiff;  whether  they  were  in  fact  the  plaintiff's,  or 
not,  he  was  not  to  inquire.  That  question  had  been  determined, 
80  far  as  the  issuing  and  execution  of  the  writ  was  concerned. 

It  is  a  familiar  principle,  sustained  by  numerous  authoritiea 


MONROE— SEPTEMBER,  1855.  361 

Foster  v.  Pettibone. 

that  process  from  a  coui't  or  officer  having  jurisdiction  to  issue 
such  process,  which  is  regular  on  its  face,  is  a  perfect  protection 
to  a  ministerial  officer,  for  acts  done  in  obedience  to  it.  {Sava- 
cool  V.  Boiighton,  5  Wend.  170.  Sheldon  v.  Van  Bits/cirk, 
2  Comstock,  473,  477.)  This  principle  appears  to  be  decisive 
of  the  question  under  consideration.  Viewing  the  mandate  of 
the  writ  as  imperative  and  unconditional,  the  strongest  consid- 
erations upon  which  the  principle  referred  to,  of  protection  to 
ministerial  officers,  can  rest  in  any  case,  exist  and- require  pro- 
tection to  the  defendant  in  this.  It  would  be  intolerable  to 
require  the  sherifiF  to  act,  and  hold  him  responsible  for  his  ac- 
tion, to  a  third  person  who  might  prove  to  be  the  owner  of  the 
property.  But  whether  the  sheriff  might  or  not,  inquire  into 
the  title  to  the  property  of  the  plaintiff  in  the  writ  of  replevin, 
and  justify  himself  for  declining  to  execute  the  writ,  by  show- 
ing that  the  plaintiff  was  not  the  owner,  he  was  not  bound  to 
take  that  burthen  and  responsibility  upon  himself,  but  might 
obey  the  writ  and  rely  upon  that  for  his  protection. 

The  distinction,  in  reference  to  the  principle  referred  to,  be- 
tween an  execution  which  goes  against  the  property  generally 
of  the  defendant,  without  specifying  any  particular  property, 
and  a  writ  of  replevin,  which  describes  the  property,  is  stated 
in  the  case  in  Carthew,  and  is  very  obvious.  In  the  case  of  an 
execution,  the  sheriff  must  see  to  it  that  he  takes  only  the 
property  of  the  defendant ;  his  authority  is  limiteu  to  that ; 
but  in  the  case  of  a  writ  of  replevin,  the  property  to  be  taken  is 
distinctly  pointed  out. 

It  is  urged  oh  the  part  of  the  plaintiff,  and  it  constrtutes  the 
chief  argument  of  the  learned  justice  who  delivered  the  opinion 
in  the  case  of  Stimpson  v.  Reynolds,  in  support  of  the  liability 
of  the  sheriff,  that  a  contrary  doctrine  would  be  in  hostility  tc 
general  principles  in  respect  to  the  right  of  property  and 
remedies  for  its  infringement.  But  as  much  so,  in  every  case 
where  the  party  at  whose  instance  process  is  issued  is  not  pro- 
tected, is  the  rule  making  the  process  a  protection  to  the  officer 
executing  it.     Take  the  case  of  an  attachment  issued  by  a  jus- 

VoL.  XX.  46 


362  CASES  IN  THE  SUPREME  COURT. 

Foster  V.  Pettibone. 

tice  of  the  peace  without  the  preliminary  proof  to  confer  juris 
diction:  an  execution  without  any  judgment;  and  simihir  cases, 
the  party  who  procured  the  process  is  a  trespasser,  but  no  rem- 
edy is  allowed  against  the  officer  who  served  it.  The  argu- 
ment is  of  as  much  force  in  the  cases  supposed,  as  in  the 
present  and  like  cases.  That  in  the  former  the  injured  party 
is  a  defendant  in  the  process,  and  in  the  latter  not,  makes  no 
diflFerence ;  a  trespass  has  been  committed  on  the  rights  of  each, 
and  on  general  principles  one  is  entitled  to  the  same  remedy 
as  the  other.  The  right  and  propriety  of  extending  protection 
to  the  officer  is  the  same  in  each.  Injustice  may  sometimes 
result  to  individuals  from  shielding  the  officer,  as  where  the 
party  obtaining  the  writ  is  pecuniarily  irresponsible,  but  on  the 
whole,  justice  is  best  promoted  by  granting  the  protection. 

The  entire  absence  of  any  provision  in  the  statute  for  an  in- 
demnity to  the  sheriff  for  the  taking  of  the  property,  confirms 
the  position  that  no  liability  is  thereby  incurred  by  him.  Am- 
ple security  for  the  benefit  of  the  party  is  provided  for,  by 
requiring  a  bond  to  the  sheriff  to  prosecute  tlie  suit  to  effect, 
and  for  a  return  ot  the  property,  if  the  defendant  recover,  and 
a  return  be  adjudged,  and  for  the  payment  of  all  such  sums  of 
money  as  the  defendant  may  recover;  but  none  is  required  fur 
the  benefit  of  the  sheriff     (2  R.  S.  523  §  26,  527,  i  32.) 

When  a  claim  of  property  in  the  goods  is  made  by  a  defend- 
ant, or  any  other  person  who  may  be  in  possession,  and  the  jury 
to  be  called  thereupon  by  the  sheriff  sustains  the  claim,  the 
sheriff  must  not  deliver  the  property  to  the  plaintiff,  unless  the 
plaintiff  "shall  indemnify  the  sheriff  to  his  satisfaction  for  de- 
livering the  property,"  &c.,  not  taking  it.  (2  R.  S.  525,  §§  13 
lo  17.)  In  Spencer  v.  McGowan,  (13  Wend.  256.)  it  is  said 
by  Sutherland,  J.,  "  These  provisions  are  designed  rather  for 
the  security  and  benefit  of  the  sheriff,  than  of  the  party  claim- 
ing the  property  ;  for  although  the  jury  may  find  in  favor  of  the 
title  of  the  claimant,  the  sheriff  may  still,  and  perhaps  must, 
deliver  the  property  to  the  plaintiff  in  replevin,  if  he  will  indem- 
nify him.     The  person  claiming  title  to  the  property  is  not  pro- 


MONROE— SEPTEMBER,  1855.  353 

Foster  v.  Pettibone. 

hibited  by  these  provisions,  from  taking  any  other  course  to  try 
jr  enforce  his  right,  which  upon  general  principles  he  might 
have  done  before  this  act  was  passed."  The  learned  justice,  in 
Stimpson  v.  Reynolds,  after  referring  to  the  sections  of  the  stat- 
ute last  cited,  and  those  remarks  upon  them,  inquires,  "Why  pro- 
vide for  making  the  officer  secure,  if  in  all  cases  the  process  in 
replevin  is  a'protection  to  him  ?"  I  admit,  that  from  this  portion 
of  the  statute,  thus  construed,  no  inference  may  be  drawn  that  the 
legislature  contejnplated  the  sheriff  might  be  liable  for  delivering 
the  goods  to  the  plaintiff  after  a  claim  of  title  was  interposed ;  but 
if  they  did  that  would  not  be  sufficient  to  create  a  liability  if 
none  in  fact  existed.  I  do  not  however  think  it  clear  that  the 
construjction  referred  to  is  correct.  An  indemnity  is  to  be 
given,  although  the  person  who  claims  property  in  the  goods  is 
the  defendants  What  liability  to  the  .defendant  would  be  in- 
curred for  which  the  sheriff  would  need  indemnity  ?  Those 
provisions  may  have  been  designed,  like  that  for  security  in  the 
first  instance,  for  the  benefit  of  the  defendant — to  afford  him 
further  security — and  if  so  the  statute  is  consistent.  It  is  not 
denied  that  these  provisions  do  not  affect  the  right  of  the  owner 
to  pursue  any  other  remedy  to  which  he  is  entitled  on  general 
principles  independent  of  them,  but  on  general  principles  the 
officer  is  protected  by  his  process  valid  on  its  face. 

The  present  case  does  not  call  for  the  decision  of  any  ques- 
tion as  to  the  liability  of  a  sheriff  for  delivering  goods  after  a 
claim  of  property  is  made,  as  in  this  case  there  Avas  no  such 
claim. 

It  is  supposed  by  the  counsel  for  the  plaintiff,  that  because 
the  owner  of  the  property  might  have  retaken  it  from  the 
sheriff,  if  he  could  do  so  peaceably,  he  might  enforce  his  right 
to  it  by  action  against  the  sheriff.  But  this  is  a  mistake. 
This  position  is  fiilly  answered  in  Spencer  v.  McGowen,  before 
cited.  The  law  fully  recognizes  the  owner's  right,  and  if  he 
can,  without  force,  obtain  the  property,  will  not  hold  him  a 
wrongdoer  for  taking  it^  but  it  withholds  from  him  an  affirma- 
tive remedy  by  action  against  a  ministerial  officer,  allowing  him 


364        CASES  IN  THE  SUPREME  COURT. 

Brewster  v.  Baker. 

an  action  only  against  other  persons  concerned  in,  or  who  insti- 
gated the  taking.     The  judgment  must  be  aflBrmed. 

Selden,  J.,  concurred. 

Johnson,  J.,  dissented. 

Judgment  affirmed. 

[Monroe  Gkneral  Term,  September  3,  1855.     Selden,  Johnson  and  T.  R. 
Strong,  Justices.] 


S.  L.  and  J.  H.  Brewster  vs.  Baker. 

By  a  written  contract,  made  between  N.  T.  and  S.  P.  T.,  the  latter  agreed  to  pay 
the  former  S1300  in  installments,  and  in  consideration  thereof  N.  T.  agreed 
that  S.  P.  T.  might  have  the  possession  and  use  of  a  certain  canal  boat,  &c., 
imless  default  should  be  made  in  the  payment  of  the  said  sum  of  Sl^OO,  or 
some  part  thereof,  or  unless  S.  P.  T.  should  do  or  attempt  to  do,  any  of  the 
acts  by  the  agreement  prohibited ,  in  either  of  which  cases  N.  T.  might  take 
possession  of  the  boat,  &c.  On  the  full  payment  of  the  $1300,  N.  T.  was  to 
execute  and  deliver  to  S.  P.  T.  a  bill  of  sale  of  said  boat,  and  put  him  in  pos- 
session. S.  P.  T.  agreed  not  to  take  or  attempt  to  remove  the  boat  out  of  the 
state,  or  transfer  or  attempt  to  transfer,  the  same  without  the  consent  of  N.  T., 
or  to  do  any  thing  to  prejudice  his  title.  In  case  default  should  be  made  in 
the  payment  of  the  said  sum  of  S1300  or  any  part  thereof,  N.  T.  was  to  have 
the  right  to  take  and  sell  the  boat  and  apply  the  proceeds  to  pay  the  balance 
unpaid,  paying  over  the  surplus,  if  any,  to  S.  P.  T.  It  was  further  provided 
that  nothing  contained  in  the  contract  should  be  so  construed  as  to  give  S.  P. 
T.  any  right  or  title  to  the  boat,  until  such  payment  should  be  fully  made  ;  ex- 
cept the  right  to  possess  and  use  the  same,  in  the  manner  and  upon  the  c»n- 
ditions  in  such  contract  mentioned.  Held  that  this  instrument  was  an  execu- 
tory contract  for  a  sale  of  the  boat  on  condition,  and  not  a  mortgage  thereof: 
the  parties  uitending,  in  respect  to  the  title,  simply  to  a^ree  for  the  sale  and 
purchase  of  tlie  boat  for  the  sum  specified ;  the  sale,  and  vesting  of  the  title, 
t«  be  upon  the  condition  of  payment  according  to  the  agreement,  and  until 
payment  the  title  to  remain  in  N.  T.     Johnson,  J.,  dissented. 

Held,  further,  that  S.  P.  T.  could  not  acquire  any  title  to  the  boat  until  he  had 
paid  the  price  ;  and  therefore  could  not  transfer  any  title  to  a  tliird  person,  so 
as  to  enable  the  latter  to  hold  the  boat  as  against  N.  T.  or  his  assignees  and 
grantees. 


MONROE— SEPTEMBER,  1855.  265 

Brewster  v.  Baker. 

THIS  was  an  appeal  by  the  plaintiffs  from  a  judgment  entered 
upon  the  report  of  a  referee.  The  action  was  brought  to 
recover  the  value  of  a  canal  boat.  The  facts,  and  the  legal 
questions  arising  on  the  trial,  appear  in  the  report  of  the  case 
when  it  was  before  the  court,  on  the  appeal  of  the  defendant. 
(16  Barb.  613.)  On  the  second  trial  the  referee  reported  in 
favor  of  dismissing  the  complaint,  with  costs ;  and  judgment 
was  entered  accordingly. 

aS*.  Mathews,  for  the  appellants.  I.  Nathaniel  Thompson 
was  clearly  the  owner  of  the  boat  in  question,  on  the  30th  of 
April,  1840.  He  transferred  his  title  to  the  plaintiffs  on  the 
23d  of  July,  1849  ;  unless,  therefore,  N.  Thompson  parted  with 
his  title  before  the  transfer  to  the  plaintiffs,  or  unless  the  plain- 
tiffs have  parted  with  the  title  acquired  by  them  from  Thomp- 
son before  the  commencement  of  this  suit,  the  plaintiffs  were 
entitled  to  recover  in  this  action.  The  fact  that  the  defendant 
was  a  bona  fide  purchaser  of  the  boat  cannot  change  the  rights 
of  the  parties.  Unless  the  defendant  has  acquired  title  from 
the  true  owner,  he  will  not  be  protected  in  his  purchase.  (  Wil- 
liams V.  Merle,  11  Wend.  80.) 

II.  The  contract  between  Nathaniel  Thompson  and  Sidney  P. 
Thompson  gave  to  the  latter  no  title  to  the  property.  (1.)  The 
contract  is  executory  and  contains  an  agreement  to  sell  at  a 
future  day,  upon  the  payment  by  Sidney  P.  Thompson,  of  the 
purchase  money,  with  a  stipulation  for  the  use  of  the  boat  in 
the  meantime  by  the  purchaser.  In  the  language  of  Judge 
Oakley,  in  2  iSand.  S.  C.  Rep.  420 :  "  It  is  exactly  the  case 
of  leasing  personal  property,  such  as  the  furniture  of  a  house, 
for  permanent  use,  with  the  addition  of  an  agreement  to  sell  it 
at  a  future  time,  on  receiving  a  stipulated  price."  In  other 
words,  it  was  a  conditional  sale  and  delivery,  by  which  no  title 
passed  until  the  performance  of  the  condition.  {Strong  v.  Tay- 
lor, 2  Hill,  326.  Dresser  Manufacturing  Co.  v.  Waterson, 
3  Mete.  9.  Ayer  v.  Bartlett,  6  Pick.  71  ;  S.  C.  9  id.  15o. 
Herring  v.  Willard,  2  Sand.  S.  C.  Rep.  41 8.  Porter  v.  Pet- 
tingill,  12  N.  H.  Rep.  298.      Tibhetts  v.  Fowler,  3  Fairf.  Rep 


36b*  CASES  IN  THE  SLTPREMl    OvJuRT. 


Brewster  v.  Baker. 


341.  Bigelow  v.  Huntley,  8  Vermoid  Rep.  151.  West  v 
Bolton,  4  id.  558.  Sargent  v.  G^i/e,  S  N.  H.  Rep.  325.  /owei 
V.  Olmsted,  MS.)  (2.)  The  express  stipulation  contained  in 
the  agreement,  that  no  title  should  pass  to  Sidney  Thompson 
until  the  full  payment  of  the  purchase  money,  is  conclusive 
upon  the  parties  in  this  case.  Thompson,  by  the  very  terms 
of  the  contract,  could  not  acquire  any  title  until  he  paid  the 
price,  and  he  could  not  therefore  transfer  a<iy  title  to  the  de- 
fendant.    (Barrett  v.  Pritchard,  2  Pick.  512.) 

III.  The  stipulation  contained  in  the  contract,  for  a  sale  of 
the  property  in  default  of  the  payment  of  the  price  as  stipulated 
in  the  contract,  did  not  render  the  instrument  a  mortgafje. 
(1.)  If  Sidney  P.  Thompson  acquired  no  title  to  the  boat,  be 
could  not  mortgage  it ;  for  the  idea  of  a  mortgage  necessarily 
implies  that  the  mortgagor  has  a  title  which  he  could  transfer 
by  way  of  mortgage.  In  this  case,  Thompson  expressly  stipu- 
lated that  he  should  not  by  the  contract  acquire  any  title  to 
the  boat  until  the  payment  of  the  purchase  money.  How  then 
could  he  mortgage  it?  (2.)  The  provision  for  a  sale  of  the 
boat  in  case  of  default  in  payment,  does  not  render  the  instru- 
ment a  mortgage.  Such  a  stipulation  was  manifestly  proper 
for  the  protection  of  the  purchaser ;  for  if  he  had  paid  a  con- 
siderable part  of  the  purchase  money  and  made  default  in  the 
residue,  he  would  lose  what  he  had  paid,  unless  he  could  have  a 
sale  and  receive  any  surplus  after  paying  the  unpaid  purchase 
money.  But  this  stipulation  gives  to  the  vendor  the  right  to 
do  precisely  what  the  law  would  entitle  him  to  do  in  such  a  case. 
The  plaintiffs,  Avithout  this  stipulation  might  have  sold  the  boat 
in  case  of  default  in  payment,  and  sued  the  vendee  for  the  resi- 
due of  the  purchase  money,  after  applying  the  proceeds  of  the 
sale.  The  necessity  of  the  stipulation  grew  out  of  the  fact 
that  the  vendor  had  parted  with  the  possession,  and  of  the  ex- 
penses which  he  might  be  put  to  in  resuming  it.  It  was  to 
provide  for  payment  for  the  labor  and  expense  of  reclaiming  the 
boat  that  this  stipulation  was  inserted,  and  it  was  that  alone 
which  rendered  it  beneficial  to  the  plaintiffs.     (Sands  v.  Tay- 


MONROE— SEPTEMBEIi,  1855.  367 

Brewster  v.  Baker. 

Itrr,  5  John.  395.     Bement  v.  Smith,  15  Wend.  493,  497.     Mac- 
lean V.  Dunn.  4  Bing.  722. 

IV.  The  receipt  or  instrument  of  the  29th  of  March,  1849, 
"was  improperly  admitted  in  evidence.  It  was  wholly  imma- 
terial. That  instrument,  as  the  proof  shows,  was  rescinded, 
and  cannot  therefore  affect  the  rights  of  the  parties,  under  the 
contract  of  the  30th  of  April.  It  was  rescinded  by  express 
agreement  of  the  parties.  It  was  also  rescinded  by  the  making 
of  the  contract  of  the  BOth  of  April.  That  contract  related  to 
the  same  subject  matter,  and  was  substituted  in  the  place  of 
the  first.     {Taylor  v.  Hilary,  1  Cromp.  Mees.  ^»  Ros.  743.) 

V.  The  question  of  estoppel,  raised  on  the  former  appeal, 
cannot  be  raised  on  the  present.  The  referee  has  found  against 
the  defendant  on  the  fact  upon  which  the  estoppel  was  based, 
and  the  defendant  not  having  appealed,  the  finding  is  conclusive. 
The  evidence  in  the  case,  however,  shows  that  there  was  no 
foundation  in  fact  for  the  estoppel. 

Sedgwick  6^  Ontwater,  for  the  respondent.  I.  The  contract 
under  which  the  plaintiffs  claim  to  recover  the  boat  in  question 
is  a  personal  mortgage,  and  is  void  as  against  a  bona  fide  pur- 
chaser, it  not  having  been  filed  as  the  law  requires,  and  there 
being  no  change  of  possession.     (4  Comst.  303.) 

II.  The  plaintiffs  having  been  notified  of  the  sale  of  the  boat  , 
to  the  defendant,  and  having  received  a  part  of  the  money  paid 
by  him  on  their  debt,  were  bound  to  give  the  defendant  im- 
mediate notice  if  they  dissented  from  such  sale,  and  not  having 
done  so  for  more  than  a  year  afterwards,  they  are  concluded 
md  estopped  from  setting  up  their  claim  as  against  the  defendant. 

T.  R.  Strong,  J.  The  report  of  the  referee  against  the 
plaintiffs,  was  placed  by  him,  as  I  understand  from  the  case  and 
rhe  points  made  on  the  appeal,  upon  the  ground  that  the  writing 
of  the  30th  of  April,  1849,  signed  by  Sidney  P.  Thompson,  and 
therein  designated  as  articles  of  afjreement  between  Nathaniel 
Thompson  of  the  first  part,  and  Sidney  P.  Thompson  of  the 
second  part,  is  a  chattel  mortgage  from  the  latter  to  the  former, 


368  CASES  IN  THE  SUPREME  COUET. 

Brewster  r.  Baker. 

and  is  void  as  against  the  defendant,  for  the  reason  that  tlier« 
was  no  change  of  possession  of  the  boat ;  that  the  writing  was 
not  filed  as  required  by  law  in  case  of  such  a  mortgage  ;  and 
that  the  defendant  is  a  bona  fide  purchaser.  It  does  not  appear 
from  the  case  that  the  position  was  taken  by  the  defendant  be- 
fore the  referee,  that  the  writing  had  not  been  filed,  but  it  un- 
doubtedly was,  and  the  court  will  so  assume,  as  no  point  founded 
on  the  omission  is  made  by  the  plaintiffs.  If  the  writing  is  a 
mortgage  the  report  is  correct ;  but  if  otherwise,  as  there  is  not, 
upon  the  finding  of  the  referee  as  to  the  facts,  any  other  ground 
on  which  the  report  can  be  sustained,  it  must  be  set  aside  and 
a  new  trial  granted. 

The  writing  expresses  in  substance,  that  the  party  of  the 
second  part  agrees  to  pay  to  the  party  of  the  first  part,  ^1300 
at  the  times  therein  specified  ;  that  the  party  of  the  first  part 
agrees  the  other  party  may  have  the  possession  and  use  of  the 
boat,  unless  default  shall  be  made  in  the  payment  of  said  sum 
or  some  part  of  it,  or  unless  the  party  of  the  second  part  shall 
do,  or  attempt  to  do,  any  of  the  acts  afterwards  in  said  writing 
prohibited,  in  either  of  which  cases  the  party  of  the  first  part 
may  take  possession  and  hold  the  boat  subject  to  the  provisions 
afterwards  in  said  writing  contained :  that  on  the  full  payment 
of  the  sum  of  $1300  as  provided,  the  party  of  the  first  part 
agrees  to  execute  and  deliver  to  the  party  of  the  second  part,  a 
bill  of  sale  of  the  boat,  and  put  him  in  possession,  if  he  shall 
not  then  be  in  possession ;  that  the  party  of  the  second  part 
shall  not  take,  or  attempt  to  remove,  the  boat  out  of  the  state, 
or  transfer,  or  attempt  to  transfer,  the  same  to  any  person,  with- 
out consent  of  the  party  of  the  first  part,  or  do,  or  attempt  to  do, 
any  act  by  which  the  title  or  possession  of  the  party  of  the  first 
part  may  be  prejudiced  ;  and  that  in  case  of  default  in  payment 
of  the  $1300,  or  any  part  of  it,  the  party  of  the  first  part  shall 
have  the  right  to  take  and  sell  the  boat  at  public  vendue,  on 
giving  such  notice  as  is  required  on  sales  of  personal  property 
on  execution,  and  in  such  case  the  proceeds  shall  be  applied  to 
pay  the  balance  unpaid,  interest  and  costs  including  traveling 
2xpcnses  and  time,  and  if  there  be  a  surplus  it  shall  be  paid  tn 


MOOTIOE— SEPTEMBER,  1S55.  369 

Brewster  v.  Baker. 

the  party  of  the  second  part ;  but  nothing  in  the  agreement 
shall  be  so  construed  as  to  give  the  party  of  the  second  part  or 
liis  assigns  any  right  in  or  title  to  the  boat  until  such  payment 
shall  be  fully  made,  except  the  right  to  possess  and  use  the  same 
in  the  manner  and  upon  the  conditions  in  the  agreement  before 
mentioned. 

In  giving  a  construction  to  this  writing,  and  determining  its 
legal  character,  the  intention  of  the  parties  must  be  sought,  and 
that  intention  when  ascertained  must  be  carried  into  effect,  un- 
less it  is  contrary  to  law.  Whatever  obscurity  and  doubt  exist 
in  regard  to  what  that  intention  was,  are  occasioned  by  the  pro- 
vision in  the  writing  as  to  the  right  of  the  party  of  the  first  part, 
in  case  of  default  in  payment  by  the  other  party,  to  take  and  sell 
the  boat,  and  as  to  the  application  and  disposition  of  the  proceeds. 
But  for  that  provision  it  Avould  be  clear  the  parties  intended,  in 
respect  to  the  title,  simply  to  agree  for  the  sale  and  purchase 
of  the  boat  for  the  sum  specified,  the  sale  and  vesting  of  the 
title  to  be  upon  the  condition  of  payment  according  to  the  agree- 
ment, and  until  payment  the  title  to  remain  in  the  party  of  the 
first  part.  The  language  would  not  admit  of  an}'-  other  even 
plausible  interpretation.  The  clauses  in  regard  to  the  posses- 
sion and  use  of  the  boat  by  the  party  of  the  second  part,  and  the 
prohibition  of  removing,  transferring  or  attempting  to  transfer 
the  boat,  or  attempting  any  acts  by  which  the  right  of  the  other 
party,  or  his  possession,  might  be  prejudiced,  are  entirely  con- 
sistent with  that  intention,  and  do  not  tend  to  establish  any 
other.  The  possession  and  use  of  the  boat  as  the  property  of 
the  party  of  the  first  part,  is  allowed,  and  the  prohibition  im- 
posed, is  of  acts  concerning  it  as  the  property  of  the  party  of 
the  first  part.  (Strong  v.  Taylor,  2  Hill.  326.  Ai/er  v.  Bart- 
lett,  6  Pick.  71.     9  id.  156.) 

Is  there  any  thing  in  the  provision  for  a  right  to  sell  the  boat, 
and  in  relation  to  the  proceeds  of  sale,  calling  for  a  different 
interpretation  ?  If  there  is,  it  must  be  because  it  contains 
something  inconsistent  with  that  view  of  the  writing.  But  I  am 
not  able  to  discover  any  thing  of  the  kind.  It  appears  to  me 
there  is  perfect  harmony  between  the  promion  and  that  inter- 

VoL.  XX.  4T 


370  CASES  IN  THE  SUPREME  COURT. 

Brewster  v.  Baker. 

pretation.  The  right  of  sale  is  a  right  to  sell  the  boat  not  the 
interest  of  one  party  more  than  of  the  other,  but  the  interest  of 
each  and  of  both  ;  it  is  not  a  right  conferred  by  the  party  of  the 
.second  part,  but  it  is  one  reserved,  with  liis  consent,  by  the 
party  of  the  first  part.  It  was  sensible  and  proper  with  a  view 
to  the  foreclosure  of  any  equities  of  the  party  of  the  second  part, 
and  to  avoid  questions  thereafter,  to  expressly  reserve  this 
right,  even  if  it  was  not  absolutely  necessary.  This  provision 
for  a  sale  may  have  been  inserted  for  the  protection  and  benefit 
of  the  party  of  the  second  part.  It  was  certainly  proper,  in  the 
view  taken  of  the  writing,  that  the  avails  of  the  sale  should  be 
applied,  after  paying  expenses,  to  the  balance  remaining  of  the 
debt,  inasmuch  as  the  debt  Avould  not  be  discharged,  in  case  of  a 
sale,  until  paid.  The  law  would  have  made  this  application  if 
the  Avriting  had  been  silent  on  the  subject.  As  to  the  payment 
to  the  party  of  the  second  part  of  any  surplus  after  satisfying 
the  debt  and  expenses,  it  may  have  been  stipulated  for  his  ben- 
efit, and  it  is  in  conformity  with  the  spirit  of  the  contract  that 
he  should  have  the  property,  or  the  avails,  on  full  payment.  It 
should  require  a  striking  and  substantial  inconsistency,  to  over- 
come the  express  language  of  the  concluding  clause  of  the  writ- 
ing, that  nothing  in  the  writing  should  be  so  construed  as  to  give 
the  party  of  the  second  part  any  right  in  or  title  to  the  boat 
until  full  payment. 

The  former  contract  between  the  parties  is  not  entitled  to 
any  weight  in  the  case,  as  the  present  writing  was  given  as  a 
substitute  for  it,  and  before  the  boat  was  delivered. 

It  was  lawful  for  the  parties  to  make  an  agreement  like  the 
present,  according  to  the  interpretation  now  given  to  it.  The 
law  sanctions  conditional  sales  and  executory  agreements  for 
sales  on  condition,  equally  with  chattel  mortgages. 

Upon  a  former  appeal  in  this  case,  when  a  new  -trial  was 
granted,  the  opinion  was  expressed  that  the  writing  in  question 
was  a  mortgage,  but  it  was  not  necessary  on  that  occasion  to 
pass  upon  the  question,  as  there  was  another  ground  on  which 
the  court  liad  determined  to  direct  a  new  trial.  {^Q  Barb. 
013  )     Upon  a  more  full  examination  of  the  Question,  I  am  now 


JEFFERSON— JULY,  1855.     .  371 


Dennis  v.  Tarpenny. 


brought  to   a  diflFerent  conclusion.     {Barrett  v.  Pritchard,  2 
Plc/c  512.) 

I   think  the  judgment  should  be  reversed  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 


Welles,  J.,  concurred. 
Johnson,  J.  dissented. 


New  trial  granted. 


[Monroe  General  Term,  Sept,  3, 1855.     Johnson,  Welles  and  T.  R.  Strong, 
Justices.] 


Elizabeth  Dennis  vs.  Daniel  F.  Tarpenny. 

A  certificate  of  acknowledgment  of  the  execution  of  a  deed,  hy  a  married  woman, 
stating  that  on  an  examination  before  the  ofBcer  ''separate  and  apart  from  her 
husband"  she  acknowledged  the  execution  of  the  same  "  without  fear  or  com- 
pulsion from  him,"  is  a  sufficient  compliance  with  the  statute  requiring  the 
officer  to  certify,  upon  an  acknowledgment  by  a  feme  covert,  that  on  "  a  pri- 
vate examination,  apart  from  her  husband,  she  executed  the  conveyance /rceZy 
and  without  any  fear  or  compulsion  of  her  husband." 

4  PPEAL,  by  the  plaintiff,  from  a  judgment  entei'ed  at  a 
j-JL  special  term.  The  action  was  ejectment,  for  dower,  and 
was  tried  before  the  Hon.  Daniel  Pratt,  one  of  the  justices 
of  this  court — a  trial  by  jury  being  duly  waived  by  the  respect- 
ive parties.  The  defendant,  on  the  trial,  admitted  that  the 
■plaintiff  was  married  to  Britton  Dennis,  in  the  complaint  men- 
tioned, prior  to  the  year  1800 ;  and  that  the  said  Britton 
Dennis  and  the  plaintiff  continued  and  remained  husband  and 
wife  from  the  time  of  such  marriage  until  the  death  of  said 
Britton  Dennis,  which  took  place  in  the  year  1849.  The  de- 
fendant also  ^admitted  that  he,  the  defendant,  was  in  possession 
of  the  premises  described  in  the  complaint,  at  the  time  of  the 
commencement  of  this  action,  and  that  he  is  still  in  the  posses- 
sion thereof;  that  the  said  Britton  Dennis  conveyed  the  prera- 


372  CASES  IN  THE  SUPREME  COURT. 

Dennis  v.  Tarpenny. 

ises  in  the  complaint  mentionerl,  in  fee  simple,  by  common 
warranty  deed,  on  tlie  3(1  day  of  January,  1828,  to  William 
Dennis,  and  that  said  Elizabeth  did  not  join  in  said  conveyance  ; 
that  said  William  Dennis  conveyed  said  premises  in  fee  simple, 
by  common  warranty  deed,  on  the  23d  of  November.  1828,  to 
John  Mc Vicar  ;  that  John  Mc Vicar  conveyed  said  premises,  in 
fee  simple,  by  common  warranty  deed,  on  the  31st  day  of  April, 
1831,  to  Solomon  Wheeler  ;  and  that  Solomon  Wheeler  convey- 
ed said  premises,  in  fee  simple,  by  common  warranty  deed,  on 
the  30th  day  of  December,  1834,  to  Daniel  F,  Tarpenny,  the  de- 
fendant in  this  action  ;  that  Britton  Dennis  was  in  possession 
of  said  premises  at  the  time  he  conveyed  the  same,  and  that 
each  of  the  other  grantors  was  in  possession  of  the  premises 
at  the  time  they  respectively  conveyed  the  same ;  that  a  de- 
mand of  dower  in  said  premises  Avas  made  of  the  defendant,  on 
behalf  of  the  plaintiflf,  on  the  5th  day  of  May,  1853.  John  A. 
Dennis  was  then  called  as  a  witness  on  the  part  of  the  plain- 
tiff, and  proved  that  the  several  grantees  took  possession  of 
said  premises  under  the  deeds  executed  to  them  respectively  ; 
and  here  the  evidence  closed  on  the  part  of  the  plaintiff.  The 
defendant  then  gave  in  evidence  a  deed  in  fee  simple  from  John 
McA^icar  and  his  wife,  dated  the  lOtli  day,  of  December,  1829, 
conveying  said  premises  to  Eben  J.  Dennis,  and  stated  that  this 
was  not  with  a  view  to  show  a  different  source  of  titlfe,  but  ad- 
mitted that  there  was  a  regular  chain  of  title  from  Britton 
Dennis  down  to  the  defendant ;  and  said  deed  was  read  in 
evidence.  The  defendant  then  offered  in  evidence  a  quitclaim 
<leed,  from  the  plaintiff  to  Eben  J.  Dennis,  of  the  premises  in 
question,  dated  the  10th  day  of  December,  1830,  on  the  back 
of  which  there  was  the  certificate  of  an  acknowledgment  in  the 
words  and  figures  following,  viz  :  "  Onondaga  county,  ss.  I  cer- 
tify that  on  the  25th  day  of  December,  1830,  came  before  me 
Elizabeth  Dennis,  grantor  of  the  within  deed,  to  mcAvell  known, 
and,  on  an  examination  separate  and  apart  from  her  husband, 
acknowledged  she  executed  the  same  for  the  uses  and  purposes 
therein  mentioned,  without  fear  or  compulsion  from  him. 

A.  Eastwood,  Com." 


JEFFERSON— JULY,  1855.  373 


Dennis  v.  Taipenny. 


The  counsel  for  the  plaintiflF  objected  to  reading  said  deed  in 
evidence,  on  the  ground  that  the  acknowledgment  and  the  certifi- 
cate thereof  were  insufficient  to  authorize  the  same  to  be  read  in 
evidence  ;  that  it  did  not  appear  by  said  certificate  that  the  deed 
was  acknowledged  on  the  private  examination  of  the  said 
Elizabeth,  nor  that  said  deed  was  executed  freely,  as  required 
by  statute.  The  objection  was  overruled  by  said  justice,  who 
allowed  the  deed  to  be  read  in  evidence  ;  and  the  same  was 
read  in  evidence,  and  the  plaintifiF's  counsel  excepted.  The 
consideration  expressed  in  said  deed  was  one  dollar.  The  plain- 
tiff's counsel  insisted  that  said  deed  was  not  sufficient  to  bar 
the  plaintiff  of  her  right  of  dower  in  "said  premises,  and  the 
justice  decided  that  it  was,  and  the  plaintiff's  counsel  excepted. 
The  plaintiff's  counsel  also  insisted  that  the  separate  quitclaim 
deed  could  not  bar  the  right  of  dower  of  said  plaintiff  in  said 
premises,  accruing  by  the  subsequent  death  of  her  husband  ; 
and  the  justice  decided  that  it  did,  and  the  plaintiff's  counsel 
excepted.  The  plaintiff's  counsel  also  insisted  that  in  order  to 
bar  her  inchoate  right  of  dower,  the  plaintiff  should  have  join- 
ed with  her  husband  in  the  deed  of  said  premises ;  and  the 
justice  decided  that  that  was  not  necessary,  and  the  plaintiff's 
counsel  excepted.  The  said  justice  decided  that  the  defend- 
ant was  entitled  to  judgment  under  the  pleadings  and  proofs, 
and  for  his  costs  to  be  taxed ;  and  judgment  was  entered  in  his 
favor,  accordingly. 

W.  C.  Rugei',  for  the  plaintiff. 
J.  Noxon^  for  the  defendant. 

By  the  Courts  Bacon,  J.  It  will  probably  be  conceded, 
and  if  not,  it  may  be  assumed,  that  if  the  deed  from  the  plaintiff 
to  Eben  J.  Dennis  of  the  premises  in  question,  was  properly 
acknowledged  by  the  plaintiff,  so  as  to  entitle  it  to  be  read  in 
evidence,  the  plaintiff's  right  of  dower  in  the  premises  was 
effectually  barred,  and  consequently  this  suit  cannot  be  sus- 
tained.    The  only  question  in  the   case  then  is,   whether  the 


374  CASES  IN  THE  SUPREME  COURT. 

Dennis  v.  Tarpenny. 

deed  Avas  so  acknowledged  as  to  authorize  its  introductiv*.  hy 
the  defendant.  The  grantor  was  a  married  woman,  and  the 
officer  who  took  the  acknowledgment  certifies  that  on  an  exanina- 
tion  before  him  "  separate  and  apart  from  her  husband"  she 
acknowledged  the  execution  of  the  same  "  without  fear  or  com- 
pulsion from  him."' 

The  counsel  for  the  plaintiff  insists  that  two  important  re- 
quisitions of  the  statute  in  reference  to  the  acknowledgment  of 
conveyances  by  married  women  have  been  omitted  by  the 
magistrate  who  took  the  acknowledgment,  and  that  consequent- 
ly the  deed  has  no  validity  to  pass  her  title  to  the  premises  in 
question.  The  provision  of  the  statute  (2  R.  S.  758,  §  13,)  is 
familiar,  and  requires  the  officer  in  the  case  of  a  married  woman, 
to  certify  that  on  "  a  private  examination  apart  from  her  hus- 
band she  executed  such  conveyance  freely  and  without  any 
fear  or  compulsion  of  her  husband."  He  has  omitted  to  state 
in  the  certificate  in  this  case,  either  that  the  examination  was 
"  private,"  or  that  she  executed  the  deed  "  freely ;"  and  the 
question  is  whether,  the  omission  of  these  two  statements  renders 
the  acknowledgment  so  defective  as  to  exclude  the  deed  from 
being  offered  in  evidence.  No  particular  stress  is  laid  on  the 
omission  of  the  word  "  freely"  in  the  acknowledgment,  for  since 
the  decision  in  the  case  of  Meriam  v.  Harsen,  (2  Barh.  Ch. 
232;)  that  is  no  longer  an  open  question.  In  that  case  the 
officer  had  omitted  to  state  that  the  acknowledgment  was  made 
freely,  but  he  added  that  it  was  made  without  fear  or  compul- 
sion. The  chancellor  held  that  the  word  "  freely"  means  only 
that  she  acted  without  constraint  or  compulsion,  and  when  the 
certificate  states  these  facts  the  requirement  of  the  statute  is 
answered. 

Eut  a  more  ingenious  argument  is  made  by  the  counsel  for 
the  plaintiff  upon  the  effect  of  the  omission  to  state  that  the 
examination  was  "  private."  It  is  contended  that  this  does  not 
mean  simply  that  it  is  private  in  respect  to  the  husband  only, 
but  that  it  is  to  be  literally  and  absolutely  private  as  to  all  the 
world  ;  that  the  object  of  the  statute  is  to  save  the  wife  from 
any  possible  constraint  on  the  part  of  the  husband,   and   that 


JEFFERSON-JULY,  1855.  375 


Dennis  v.  Tarpenny. 


her  entire  protection  demands  ^hat  she  shall  be  free  from  the 
presence  of  any  person  whatever,  except  the  oflBcer  to  whom 
she  makes  the  acknowledgment,  since  the  husband  might, 
through  the  presence  of  a,  third  party  in  his  interest,  exercise 
a  control  as  effective  as  if  present  in  his  own  person.  The  ar- 
gument is  plausible,  but  it  cannot.  I  think,  be  upheld  upon  a 
true  construction  of  the  statute,  nor  on  authority.  It  is  a  little 
remarkable  that  no  case  has  arisen  in  the  courts  qf  this  state, 
where  this  precise  question  has  been  presented  ;  since  it  must 
be  manifest  that  in  the  vast  number  of  acknowledgments  that 
have  been  taken  in  this  state,  omissions  of  the  character  of  the 
one  in  question  must  frequently  have  occurred. 

But  there  are  decisions  in  respect  to  other  requirements  of 
the  statute,  from  which  a  strong  analogy  may  be  drawn,  and 
considerations  in  respect  to  the  construction  it  has  practi- 
cally received,  which  should  be  controlling  in  this  case.  Thus 
the  statute  provides,  as  it  has  for  more  than  half  a  century, 
that  the  officer  taking  the  acknowledgment  shall  certify  that 
the  person  making  the  acknowledgement  "is  known  to  him  to 
be  the  person  described  in  and  who  executed  the  conveyance." 
In  the  case  of  Jackson  v.  Gumeer,  (2  Cowen,  552,)  the  certifi- 
cate of  the  magistrate  stated  that  "  A.  B.,  to  me  Jawwn,  came 
and  acknowledged,  &c."  The  court  held  this  a  sufficient  ac- 
knowledgment.  Ch.  J.  Savage  says  that  if  called  upon  to  es- 
tablish a  form  of  certificate,  he  should  certainly  deem  it  best 
for  the  officer  to  certify  that  the  grantor  was  known  to  the  offi- 
cer to  be  the  person  described  in  the  deerl,  "but,"  he  adds,  "the 
legislature  could  not  expect  the  officer  to  know  that  the  grantor 
described  in  the  deed  actually  executed  it,  otherwise  than  by 
his  acknowledgment,  or  proof  by  a  witness.  The  form  used  in 
the  case  has  been  in  very  genei-al  use,  and  the  practice  in  this 
respect  may  perhaps  amount  to  a  construction  of  the  act.''  In 
the  case  of  Duval  v.  Coveiihoven,  (4  Wend.  561,)  an  acknowl- 
edgment of  the  same  character  was  also  held  perfectly  good. 
{See  also  Troup  v.  Haight,  Hopk.  239.) 

The  same  course  of  reasoning  which  led  the  chancellor  to 
hold  that  the  omission  of  the  word  "freelv"  did  not  invalidate 


376  CASES  m  THE  SUPREME  COURT. 

Dennis  v.  Tarpenny. 

an  acknowledgment,  where  the  certificate  stated  that  the  con 
veyance'was  executed  without  fear  or  compulsion  of  the  hus- 
band, conducts  us  to  the  conclusion  that  the  omission  to  state 
that  the  examination  was  "private,"  does  not  affect  the  validity 
of  the  acknowledgment  here.  The  use  of  the  words  "  without 
fear  or  compulsion,"  is  only  another  mode  of  stating  that  the 
acknowledgment  was  freely  made,  and  the  phrase  is  added  sim- 
ply for  the  sake  of  greater  caution ;  the  latter  words  being  in 
effect  the  correlative  of  the  former.  If  the  wife  executes  the 
deed  without  fear  or  compulsion,  she  manifestly  does  it  freely, 
and  the  object  of  the  statute  is  fully  secured.  In  like  manner 
the  word  "private"  is  qualified  and  explained  by  the  superadded 
phrase,  "apart  from  her  husband."  Otherwise  these  w^ords 
would  seem  to  be  meaningless,  for  if  by  "private"  is  meant 
the  absence  of  all  persons  whatever,  why  should  the  other 
words  be  added,  "apart  from  her  husband,"  who  would  be 
necessarily  excluded,  unless,  as  it  is  pertinently  said,  "man  and 
wife  are  literally  as  well  as  figuratively  one."  The  design  of 
the  statute,  it  seems  to  me,  obviously  is  to  secure  the  wife  from 
the  control  or  interference  of  her  husband,  and  from  his  alone. 
It  does  not  contemplate  the  remote  possibility  that  an  influ- 
ence may  be  exerted  by  the  passive  presence  of  a  third  party. 
Such  influence  might  as  readily  be  assumed  to  exist  by  the 
presence  of  the  examining  ofiicer,  who,  it  may  not  be  a  violent 
presumption  to  suppose,  may  as  easily  be  converted  by  the  ab- 
sent husband  into  an  instrument  of  constraint  or  intimidation. 
If  it  be  objected  that  by  this  construction  the  legislature  has 
used  more  words  than  are  necessary  to  convey  their  meaning, 
this  may  readily  be  granted ;  and  the  same  reason  exists  for. 
such  use  as  in  the  corresponding  phrases  which  are  employed 
to  secure  the  existence  of  the  other  important  qualification, 
that  she  is  to  be  exempt  from  fear  or  compulsion.  When  that 
fact  is  stated,  it  follows  that  she  executes  the  conveyance  freely; 
and  when  the  examination  is  stated  to  be  apart  from  the  hus- 
band, it  equally  follows  that  it  is  private  in  respect  to  the 
only  party  whose  exclusion  is  deemed  necessary,  in  order  to 
secure  her  voluntary  and  unbiased  acknowledgment. 


JEFFERSOJf— JULY,  1855.  377 


Dennis  v.  Taqjennj'. 


It  has  been  repeatedly  held  in  the  courts  of  other  states  as 
well  as  of  our  own,  that  a  certificate  of  acknowledgment  is 
good  if  it  shows  a  substantial,  though  not  a  verbal,  compliance 
vith  the  requirements  of  the  act  concerning  the  acknowledg- 
ment of  conveyances.  (See  Liiffboro  v.  Parker,  12  Serg.  ^* 
liavdc,  48  ;  Whaler  v.  Brand,  6  Binn.  435  ;  Dundas  v.  Hitch- 
cock, 12  Hmo.  U.  ^.  Rep.  257 ;  Webster  v.  Hale,  2  Har.  ij- 
McHen.  19  ;  and  Den  v.  Geiger,  4  Halst.  225.)  The  latter 
ease  decides  the  very  point  in  question  here.  The  certificate 
omitted  to  state  that  the  acknowledgment  was  made  on  a  pri- 
vate examination,  or  that  it  was  without  fear  of  the  husband, 
although  the  statute  required  both  things  to  be  certified  by  the 
magistrate.  The  court  held  the  acknowledf^ment  to  be  a  sub- 
stantial  fulfillment  of  the  requirements  of  the  act,  and  the 
deed  was  admitted  in  evidence. 

Some  stress  is  laid,  in  the  case  last  cited,  upon  the  consider- 
ation that  by  long  usage  the  statute  had  received  a  practical 
construction,  which  it  would  be  unwise  and  eminently  unsafe 
to  disturb.  The  same  position  is  taken  and  elaborately  vin- 
dicated, by  Chancellor  Sanford,  in  Troup  v.  Haight,  (Hopk. 
268,)  and  approved  by  Chancellor  Walworth,  in  Meriam  v. 
Harsen,  {cited  supra.)  General  usage,  long  continued  and 
hitherto  unquestioned,  has  great  force ;  and  the  practical  con- 
struction of  the  law  by  so  many  public  officers,  though  not 
given  upon  adverse  litigation,  must  have  much  of  the  weight 
of  judicial  decision.  I  can  easily  imagine  that  a  decision  hold- 
ing the  acknowledgment  in  this  case  defective,  would  unsettle 
half  the  titles  in  this  state,  and  I  have  no  ambition,  upon  a 
point  so  narrow  and  technical,  to  open  the  flood-gates  of  endless 
and  destructive  litigation.  The  hand  mio^ht  well  hesitate  to 
apply  the  torch  where  extensive  devastation  would  inevitably 
follow,  and  the  fame  of  the  Ephesian  incendiary,  though  wide 
as  the  world  and  lasting  as  time,  has  never  been  considered 
one  greatly  t )  be  coveted.  It  is  undoubtedly  true  that  some 
decisions  have  oeen  made  in  the  courts  of  our  sister  states 
which  maintain  the  doctrine  conterded  for  by  the  plaintift"'s 
counsel,  and  hold  acknowledgments  like  the  one  in  question  de 

A^oL.  XX.  48 


378  CASES  IN  THE  SUPREME  COURT. 


3h290 


Hamuioud  v.  Hudson  River  Iron  and  Machine  Co. 

fective.  I  have  not,  however,  been  able  to  examine  them  in 
connection  with  the  statutes  upon  which  they  are  founded,  with 
sufficient  care  to  determine  how  far  they  are  entitled  to  con- 
sideration on  a  question  of  this  character.  But  whatever  may 
be  their  binding  force  within  the  jurisdictions  where  they  arose, 
I  am  satisfied  that  the  weight  of  sound  authority  as  well  as  of 
reason,  is  in  favor  of  the  view  I  have  endeavored  to  maintain. 
The  result  is,  that  the  ruling  at  the  circuit  was  right,  and  the 
judgment  must  be  affirmed. 

[.Tkffkrson  general  Term,  July  2,  1855.      W.  F.  Allen,  Pratt,  Hubbard 
and  Bacon,  Justices.] 


38    848 
58    645 

ih  667|       Hammond  and  others  vs.  The  Hudson  River  Iron  and  Ma- 


chine Company,  Mears  and  Beach. 

An  action  will  lie,  in  aid  of  a  suit  at  law,  to  reach  property  and  effects  in  the 
hands  of  parties  who,  it  is  alleged,  have  fraudulently  received  the  same  from 
the  judgment  debtors,  and  unjustly  assert  a  claim  thereto  against  the  plaintiff's 
judgment  and  execution 

Tlie  remedy,  where  a  creditor's  bill  was  proper  previous  to  the  code,  is  still  pre- 
,  served,  in  the  form  of  an  action  in  the  supreme  court. 

Tlie  judgment  creditor  may  commence  the  action  for  his  own  benefit,  or  in  behalf 
of  himself  and  all  others  in  the  same  situation  with  himself  who  may  choose  to 
come  in  and  contribute  to  the  expenses  of  the  suit.  The  rule  has  not  been 
changed  by  the  code. 

It  is  not  a  subject  of  demurrer  that  all  the  creditors  of  the  judgment  debtors  are 
not  joined  as  plaintiffs.  . 

A  judgment  creditoi-,  who  has  exhausted  his  remedy  at  law,  may  obtain  relief 
against  his  debtor's  property  in  the  hands  of  a  fraudulent  assignee,  by  a  direct 
action  against  the  debtor  and  the  assignee,  to  reach' the  property  thus  held  un- 
der the  void  assignment. 

Wliere,  in  an  action  brought  by  a  judgment  creditor,  against  the  judgment  debtor, 
in  aid  of  the  suit  at  law,  the  complaint  alleges  that  property  and  money  receiv- 
ed by  third  persons  under  and  by  virtue  of  a  fraudulent  assignment  and  judg 
ment,  was  the  property  of  the  judgment  debtor,  such  tliird  persons  are  neces- 
sary parties  to  the  action. 

And  where,  independent  of  any  claim  such  third  persons  might  set  up  as  owners 
of  the  projxjrty  sought  to  be  reached  by  the  action,  they  were  cliarged  by 


ST.  LAWRENCE— SEPTEMBEK  1855.  379 

Hammond  v.  Hudson  River  Iron  and  Machine  Co. 

clear,  distinct  and  specific  allegations  in  the  complaint,  with  fniudulent  and 
unlawful  acts,  and  with  efforts  to  hinder  and  delay  the  plaintiffs  in  the  collec- 
tion of  their  debt ;  Held,  on  demurrer,  that  this  was  enough  to  render  them 
proj)er  parties  to  the  action. 
Where  the  subject  of  an  action  is  the  property  of  a  judgment  debtor,  and  the 
cause  or  ground  of  action  is  an  impediment  thrown  in  the  waj'  of  collecting  the 
plaintiff''s  judgment,  and  the  object  of  the  action  is  to  remove  the  impediment 
— all  other  results  being  merely  incidental,  such  as  accounting,  and  applying 
the  avails  of  the  property  which  may  be  reached — and  the  defendants  are 
charged  jointly  with  the  commission  of  the  fraudulent  acts,  and  they  are  alike 
concerned  in  the  judgment,  or  thing  to  be  recovered,  altliough  their  interests, 
as  to  separate  parts,  are  distinct,  the  complaint  will  be  held  to  contain  but  one 
cause  of  action. 

DEMURRER  to  the  complaint.  The  complaint  set  up  the 
recovery  of  a  judgment  in  favor  of  the  plaintiffs  against  the 
Hudson  River  Iron  and  Machine  Company,  a  corporation  duly 
organized,  the  issuing  of  an  execution  thereon  to  the  proper 
county,  and  its  return  by  the  sheriff  unsatisfied.  That  the 
amount  of  the  judgment  remained  due,  and  that  the  plaintiffs 
were  the  owners  thereof.  That  the  company  had  property,  equi- 
table rights  and  choses  in  action,  which  ought  to  be  applied  on 
the  judgment,  and  that  the  company  was  insolvent.  That  the 
defendants,  Mears  and  Beach,  claimed  property  and  effects  be- 
longing to  the  company,  as  assignees,  under  an  assignment  from 
the  company  to  them,  as  a  security  for  indorsements  by  them 
for  the  company,  and  had  disposed  of  some  part  thereof;  which 
assiornment  was  alleged  to  be  fraudulent  and  void  as  against  the 
plaintiffs  and  other  creditors.  That  the  defendant  Beach  ob- 
tained a  judgiiient  against  the  company  for  the  same  debts  and 
liabilities  to  secure  which  the  assignment  was  made,  and  under 
execution  issued  thereon  sold  property  and  satisfied  the  same. 
That  such  judgment  was  fraudulently  procured  by  Beach  in  col- 
lusion with  the  company  and  with  Mears,  and  was  fraudulent 
and  void.  That  the  company  were  insolvent  when  the  assign- 
ment was  made,  and  Avhen  the  fraudulent  judgment  was  obtained. 
That  Beach  and  Mears  were  original  corporators,  and  stockhold- 
ers of  the  company,  and  ever  since  then  had  been  and  still  were 
stockholders  for  nearly  one-half  of  the  amount  of  the  capital 
stock  ;  and  that  Mears,  at  the  time  of  the  making  of  the  assign- 


380  CAgES  IN  THE  SUPREME  COUET. 

Hammond  v.  Hudson  River  Iron  and  Machine  Co. 

ment,  was  the  treasurer  of  the  company,  and  executed  the  same 
for  and  in  behalf  of  the  company.  That  Beach  and  Mears 
claimed,  under  the  assignment,  all  the  company's  property,  both 
real  and  personal.  That  Beach  was  in  the  possession  of  the  real 
estate  mentioned  in  the  assignment,  carrying  on  business,  and 
that  Mears  acted  as  his  agent.  That  the  indebtedness  for  which 
the  plaintiffs'  judgment  was  obtained  accrued  before  the  making 
of  the  assignment. 

The  plaintiffs  demanded  as  relief,  that  the  assignment  and 
judgment  be  adjudged  fraudulent  and  void,  and  that  the  defend- 
ants Beach  and  Mears  account  for  the  property,  with  the  avails 
of  the  property  received  by  them  and  each  of  them  tinder  or  by 
virtue  of  the  same,  and  that  the  company  might  be  decreed  to 
pay  the  plaintiffs  the  amount  found  due  them  with  costs,  and  be 
adjudged  to  apply  for  that  purpose  all  property,  money  and 
effects  belonging  to  it  or  held  in  trust  for  it,  or  fraudulently 
transferred  to  Beach  and  Mears.  The  complaint  also  asked  for 
the  appointment  of  a  receiver,  and  for  an  injunction. 

Ronieyn  <^  Taber,  for  the  plaintiffs. 

A.  D.  Waite,  for  the  defendants. 

BocKES,  J.  This  action  is  brought  in  aid  of  the  suit  at  law, 
to  reach  property  and  effects  in  the  hands  of  the  defendants 
Mears  and  Beach,  who  it  is  alleged  have  fraudulently  received 
the  same  from  the  judgment  debtors,  and  unjustly  assert  a'claiiu 
thereto  against  the  plaintiffs'  judgment  and  execution.  The 
proceeding  is  one  formerly  recognized  and  much  favored  in  the 
court  of  chancery.  Its  object  was  to  assist  an  honest  creditor, 
and  to  defeat  the  purposes  of  those  fraudulently  combining  to 
avoid  the  due  execution  of  the  law.  The  remedy,  when  a  cred- 
itor's bill  was  proper  before  the  code,  is  still  preserved  in  the 
form  of  an  action  in  this  court.  ( Rofrers  v.  Heiii,  1  Code  Rep.  79. 
Dnnluim  v.  Nichnlsoji,  2  /Sa?idf.  636.  Goodyear  v.  Belts  and 
Smith,  7  How.  P.  R.  187.)  This  being  determined,  the  first 
olgection  raised  by  the  demurrer  should  be  considered.     It  is 


ST.  LAWRENCE— SEPTEMBER,  1855.  2S\ 

Hammond  v.  Hudson  R»er  Iron  and  Machine  Co. 

insisted  that  there  is  a  defect  of  parties  plaintififs,  inasmuch  as 
all  the  creditors  of  the  judgment  debtors  are  not  joined  as  plain- 
tiffs. The  question  presented  by  this  objection  cannot  be  re- 
garded as  open  for  discussion,  unless  decisions  are  to  be  wholly 
disregarded.  The  creditor  may  commence  the  action  for  his 
own  benefit,  or  in  behalf  of  himself  and  all  others  in  the  same 
situation  with  himself  who  may  choose  to  come  in  and  contribute 
to  the  expenses  of  the  suit,     {Edmestoii  v.  Lyde,  1  Paiffe,  637. 

Wakeman  v.  Grover,  4  id.  23.)  The  rule  has  not  been  changed 
by  the  code.  {Hahicht  v.  'Pemherton,  4  Sandf.  S.  C.  R.  657. 
Broionson  v.  Gifford,  8  Hmo.  Pr.  Rep.  389,  395.)  Under  the 
practice  in  chancery  the  creditor  whose  suit  was  first  commenced, 
if  the  suit  was  brought  for  his  own  benefit  only,  obtained  a  pri- 
ority of  lien  on  the  judgment  debtor's  property  and  eifects  (ex- 
cept real  property)  over  other  creditors  whose  actions  were 
afterwards  commenced,  and  was  entitled  to  a  priority  of  paj^ment 
from  the  avails  thereof.  {Corning-  v.  While,  2  Paige,  567. 
Edmeston   v.  Lyde,   1   id.  637.     Fitch  v.   Smith,  10   id.    9. 

Wheeler  v.  Wheedon,  9  How.  Prac.  Rep.  293.)  The  creditor 
thus  obtains  the  reward  of  diligence.  When  the  action  is 
brought  to  set  aside  a  general  assignment  for  the  benefit  of  the 
creditors  of  the  judgment  debtor,  the  assignee  is  deemed  to 
represent  all  the  creditors,  and  his  defense  is  their  defense.  As 
beneficiaries  of  the  trust,  they  are  to  be  regarded  as  represent- 
ed by  their  trustee.  {Russell  v.  Lasher,  4  Barb.  232.  Wake^ 
man  v.  Grover,  4  Paige,  23.  Bank  of  Brit.  N.  America,  v. 
Suydam,  6  How.  Pr.  Rep.  379.  Wheeler  v.  Wheedon,  supra.) 
Consequently  they  are  not  necessary  parties  to  the  action. 

In  the  case  under  consideration  the  assignment  and  judgment 
sought  to  be  set  aside,  conferred  no  benefits  or  advantages  upon 
any  persons  except  the  defendants  Mears  and  Beach  :  hence 
they  do  not  represent  the  interests  of  any  one,  in  the  property, 
except  themselves.  But  they  are  in  no  better  situation,  on  that 
account,  to  insist  on  the  objection  that  there  is  a  defect  of  par- 
ties plaintiffs.  This  action  is  therefore  Avell  "brought  by  the 
plaintififs  "  as  well  for  themselves  as  in  behalf  of  all  others  hav- 
ing similar  interests  with  them   in   the   subject  matter  thereof, 


382  CASES  fN"  THE  SUPREME  COURT. 

/  . 

Hammond  v.  Hudson  Rivpr  Iron  and  Machine  Co. 

and  in  the  relief  sought  to  be  obtained  thereby,  and  who  may 
choose  to  come  in  as  parties  plaintiffs  to  this  suit  and  contribute 
their  shares  of  the  expenses  thereof."  How  far  this  clause  of 
the  complaint,  and  how  far  the  fact  that  the  judgment  debtor  is 
a  corporation,  will  affect  the  plaintiffs'  right  to  an  application  of 
the  funds  to  be  acquired  by  this  action,  if  any  are  acquired — 
supposing  that  other  creditors  should  come  in  to  claim  the  advan- 
tages to  iirise  from  this  prosecution — it  is  unnecessary  now  to 
decide.  As  to  the  application  of  the  funds,  see  Morgan  v.  A^. 
York  and  Albany  RaU  Road  Co.,  (10  Paige,  290.) 

The  second  ground  of  demurrer  is  that  the  defendants  Mears 
and  Beach  are  improperly  joined  with  the  company,  as  defendants. 

By  the  complaint  they  are  charged  with  being  the  fraudulent 
assignees  of  the  company's  property,  and  also  beneficiaries  of  a 
fraudulent  judgment  against  it.  And  the  complaint  prays 
that  the  assignment  and  judgment  may  be  decreed  void,  and 
that  Mears  and  Beach  may  be  compelled  to  account  for  the 
property,  and  the  avails  thereof  claimed  and  appropriated  by 
them  under  the  same,  to  the  end  that  such  property  and  avails 
may  be  applied  in  satisfaction  of  the  plaintiff's  debt.  The  ob- 
ject of  the  action  is  to  reach  the  property  of  the  company  and 
the  avails  therex)f  which  have  come  into  the  hands  of  Mears 
and  Beach  under  the  assignment  and  judgment.  This  pur- 
pose cannot  be  obtained  without  giving  them  an  opportunity  to 
litigate  their  right  thereto.  Before  their  claim  can  be  barred 
they  are  entitled  to  a  day  in  court.  And  to  them  it  can  make 
no  difference  whether  the  action  to  determine  their  claim  is 
brought  by  the  creditor,  or  by  a  receiver  for  his  benefit.  It 
was  doubted,  at  one  time,  whether  a  receiver  coulu  maintain  an 
action  to  set  aside  a  fraudulent  conveyance  made  by  a  judg- 
ment debtor ;  but  that  doubt  has  been  removed  by  a  late  decis- 
ion in  the  court  of  appeals,  whereby  it  is  held  that  he  may. 
But  I  am  not  aware  of  any  case  deciding  that  a  judgme  "-t 
creditor  having  exhausted  his  remedy  at  law,  may  not  ob<^ain 
relief  against  h'is  debtor's  property  in  the  hands  of  a  fraudulent 
assignee,  by  a  direct  action  against  him  to  reach  the  property 
thus  held  under  the  void  assignment.     Nor  can  I  conceive  of 


Sr.  LAWRENCE— SEPTEMBER,  1855.  383 

Hammond  v.  Hudson  River  Iron  and  Machine  Co. 

any  principle  on  which  such  a  decision  could  be  made  or  upheld. 
It  has  been  the  practice  from  a  very  early  day,  to  institute  pro- 
ceedings in  form  and  theory  like  this,  differing  only  in  some 
unimportant  specific  allegations  in  regard  to  the  alleged  fraud- 
ulent acts  of  the  parties.  Spader  v.  Davis,  (5  John.  Ch.  280 ; 
affirmed  in  court  of  errors,  20  John.  554.)  may  be  regarded  as  a 
leading  case  in  this  state,  although  the  doctrine  of  that  case 
had  been  recognized  in  some  earlier  decisions.  Similar  actions 
are  to  be  found  in  almost  every  book  containing  reports  of  cases 
in  chancery  to  the  present  day.  (Leitch  v.  Hollister,  4  Comst. 
211.  Barney  v.  Griffin,  2  Comst.  365.)  Nor  does  the  code 
offer  any  impediment  to  this  action,  for  if,  as  has  been  seen, 
(1  Code  Rep.  79 ;  2  Sandf.  637,)  the  remedy,  when  a  cred- 
itor's bill  was  proper  before  the  cede,  is  still  preserved  in  the 
form  of  an  action  in  this  court,  the  additional  relief  sought 
against  the  fraudulent  assignees  of  the  judgment  ^debtor  may 
be  obtained  also.  Section  299  of  the  code  applies  to  those 
cases  only  where  proceedings  supplementary  to  execution  have 
been  instituted  under  chap.  2,  title  9  thereof.  {Goodyear  v. 
Belts,  7  How.  Pr.  Rep.  187.)  It  will  not  be  claimed,  proba- 
bW,  that  the  judgment  debtor,  in  an  action  to  set  aside  a  fraud- 
ulent disposition  of  his  property,  is  not  a  necessary  party — espe- 
cially in  a  case  like  this,  where  the  debtor  still  has  an  interest  in 
the  property  assigned — the  same  being  transferred  as  security 
only.  (  Vanderpoel  v.  Van  Valkenhurgh,  2  Seld.  190.  Story^s 
Eq.  PL  §  153.)  It  is  equally  obvious  and  well  settled  that  the 
fraudulent  assignee  should  be  made  a  party.  (  Gray  v.  Schenck, 
4  Comst.  4G0.  Fellows  v.  Felloivs,  4  Cowen,  682.  Boyd  v. 
Hoyt,  5  Paige,  65.  Story's  Eq.  PI.  §  155.)  The  property  of  the 
judgment  debtor  is  the  subject  of  the  action,  and  no  rule  is 
more  apparent  or  more  general  in  its  application  to  chancery 
pleading,  than  that  all  the  parties  interested,  or  claiming  an 
interest  therein,  should  be  made  parties.  This  is  necessary  in 
order  to  a  full  and  complete  determination  of  the  suit. 

In  this  case  the  property  and  money  received  by  the  defend- 
ants Mears  and  Beach,  under  and  bv  virtue  of  the  assio^nment 
and  judgment,  are  alleged  by  the  complaint  to  have  been  and 


184  CASES  IN  THE  SUPREME  COURT. 


Hammond  v.  Hudson  River  Iron  and  Manufacturing  Co. 

to  l)e  the  property  and  money  of  the  company.  Hence  tlie^^ 
must  beheld,  in  deciding  this  case  on  demurrer  to  the  com- 
plaint, necessary  parties  to  the  action.     {Code,  §  118.) 

But  independent  of  any  claim  they  may  set  up  as  owners  of 
the  property,  sought  to  be  reached  b}'  this  action,  the  defend- 
ants Mears  and  Beach  are  charged,  by  clear,  distinct  and 
specific  allegations  in  the  complaint,  Avith  fraudulent  and  unlaw- 
ful acts,  and  with  efforts  to  hinder  and  delay  the  plaintiffs  in 
the  collection  of  their  debt.  That  is  enough  to  hold  them,  on 
demurrer,  as  proper  parties  to  the  action.  {Brady  v.  McCosker, 
1  Comst.  214.     Huggins  v.  King,  3  Barb.  S.  C.  Rep.  616.) 

It  was  remarked  on  the  argument,  that  inasmuch  as  the 
complaint  alleged  a  sale  of  the  company's  property  on  execu- 
tion, and  that  the  same  was  liable  to  be  applied  on  the  plain- 
tiff's judgment,  therefore  the  several  purchasers  on  the  exe- 
cution sale  should  be  made  parties.  But  the  statement  in 
the  complaint  when  condensed,  is,  in  substance,  that  the  judg- 
ment was  fraudulent,  and  that  the  defendants  were  therefore 
the  fraudulent  recipients  of  the  avails  of  the  sale  ;  and  the 
plaintiffs  seek  now  to  charge  the  defendants,  Mears  and  Beach, 
with  the  value  or  avails  of  the  property  sold. 

The  third  ground  of  demurrer  is,  that  several  causes  of  action 
have  been  improperly  united. 

The  subject  of  the  action  is  the  property  of  the  judgment 
debtor  ;  the  cause  or  ground  of  action,  is  the  impediment  thrown 
in  the  way  of  collecting  the  debt;  and  the  object  of  the  action 
is  to  remove  the  impediment.  All  other  results  are  merely 
incidental,  such  as  accounting  and  applying  the  avails  of 
the  property  which  may  be  reached.  The  complaint,  there- 
fore, contains  but  one  cause  of  action.  The  judgment  pray 
ed  for,  or  to  which  the  plaintiffs  are  entitled  under  the  facts 
stated  in  the  complaint,  taken  as  admitted,  would  affect  the 
parties  alike.  It  would  declare  the  assignment  and  judg- 
ment fraudulent  and  void,  and  that  in  law  and  in  fact,  the 
property  and  its  avails  received  under  them  were  subject  to  the 
payment  of  the  company's  debts,  and  should  be  applied  in  pay- 
ment thereof:  and  the  accounting,  and  the  decree   to   pay  over 


ST.  LxVWRENCE— SEPTEMBER,  1855.  ^85 

Hammond  v.  Hudson  Hiver  Iron  and  Machine  Co. 

by  them  the  amount  they  respectively  might  have  received  of 
the  company's  property,  would  be  but  carrying  out  the  judg- 
ment equitably  as  between  the  parties.  The  defendants  are 
charged  jointly  with  the  fraudulent  acts  ;  they  are  alike  con- 
cerned in  the  judgment  or  thing  to  be  recovered,  although  their 
interests  as  to  separate  parts  are  distinct.  Like  Fellows  v. 
Fellows,  (4  Cowen,  682,)  this  case  must  be  considered  as  falling 
within  the  class  of  cases  where  there  is  a  common  interest  cen- 
tering in  the  point  in  issue  in  the  cause. 

The  allegation  in  regard  to  the  real  estate,  and  Beach's  pos- 
session thereof  as  principal,  and  Mears'  as  agent,  were  proper, 
in  order  to  authorize  a  clause  in  the  decree,  declaring  the  plain- 
tiffs' judgment  equitably  entitled  to  a  priority  of  lien,  over  the 
alleged  fraudulent  assignment  and  judgment,  set  up  by  the 
defendants.  If  these  should  be  set  aside  the. other  judgments 
against  the  company  would  become  liens  on  the  real  estate  in 
the  order  in  which  they  were  docketed. 

It  may  be  proper  to  add  a  few  considerations  in  regard  to 
the  judgment  recovered  by  Beach.  It  is  not  sought  to  set 
that  aside  for  irregularity,  but  for  fraud.  It  is  alleged  that 
the  judgment  was  obtained  for  the  same  indebtedness  which 
formed  the  consideration  of  the  alleged  fraudulent  assignment, 
and  that  it  was  obtained  fraudulently  and  coUusively,  and  that 
the  same  is  fraudulent  and  void  ;  and  it  is  also  alleged  that  Mears 
was  interested  therein.  As  the  facts  are  stated  in  the  com- 
plaint, the  assignment  and  judgment  would  probably  stand  or 
iiill  together.  There  are  some  shades  and  points  of  difference, 
but  there  are  considerations  common  in  their  application  to 
both  judgment  and  assignment,  which  on  this  demurrer  must 
be  deemed  sufficient  to  authorize  the  court  to  set  them  both 
aside  in  one  action. 

The  defendants  are  charged  with  setting  them  on  foot  and 
upholding  them  for  the  purpose  of  hindering,  delaying  and  de- 
frauding the  creditors  of  the  company  in  the  collecting  of  their 
debts.  Some  of  the  facts  on  which  the  plaintiffs  rely  to  sustain 
the  charge  are  stated,  from  which  it  appears,  that  in  one  view 
to  be  taken  of  the  case,  they  stand  alike  and  on  the  same  facts 

Vol.  XX.  49 


386  '-^  ''^^^  ^-"^  ""-'^-^  SUPREME  cour.T. 


L/'*rjr.ond  v.  Hudson  River  Ircc  Jiad  'lia^riine  Oo. 

It  i?  T^robable  there  are  some  t: nr. i;ccss«',/y  allegaticos  in  the 
com'/.?  int.  Perhaps  it  would  have  beea  enough  to  have  alleged 
the  h.dgmeut  and  execution,  vith  u  return  thereof  unsatisfied, 
the  r,ssignnient  and  judgyncnt  aad  the  defendants'  claims  there- 
ur/uer,  and  that  the  same  ve'/e  made  and  procured  to  hinder, 
df'rjy  and  defraud  th-^/  creditors  of  the  company.  But  the 
question,  on  demurrer,  is  not  whether  the  pleadings  contain 
rodundant  or  irreleyont  matter,  but  whether  a  cause  of  action 
in  stated  in  the  complaint. 

It  is  not  deemed  necessary  to  decide  whether  the  complaint 
■vrould  be  considered  good  for  the  purpose  of  winding  up  the 
aifairs  of  the  company.  If  the  views  above  suggested  are  cor- 
rect, it  is  good  for  the  purpose  of  reaching  the  property  of  the 
(jompany  m  the  hands  of  Mears  and  Beach,  who,  it  is  alleged, 
•inlawfaFij  claim  it,  and  placing  it  in  the  hands  of  a  receiver,  to 
5e  applied  according  to  law  in  satisfaction  of  its  debts. 

The  coiTiplaint  contains  no  allegation  that  the  action  is 
»ot  preferred  and  prosecuted  by  collusion  or  for  the  purpose 
>f  protecting  the  property  and  effects  of  the  debtor  against  the 
elaims  of  other  creditors.  This  allegation  was  rendered  neces- 
sary in  the  late  court  of  chancery  by  a  rule  of  the  court,  and 
an  omission  of  this  averment  was  held  to  be  good  ground  of  de- 
murrer. {McElwaln  v.  Willis,  8  Paige,  505.)  The  present 
rules  of  the  supreme  court  have  not  adopted  the  chancery  rule 
referred  to,  unless  it  must  be  regarded  as  adopted  by  rule  90. 
In  Quick  V.  Keeler,  (2  Sandf.  231,)  it  was  decided  that  the 
rules  of  the  court  requiring  certain  allegations  to  be  inserted 
in  a  creditor's  bill  were  superseded  by  the  code,  and  that  it  was 
enough  if  the  plaintiff  complied  with  the  requirements  of  the 
code,  and  the  provisions  of  the  statute,  in  setting  forth  the 
cause  of  action. 

But  in  this  case,  this  objection  is  not  specially  pointed  out 
by  the  demurrer,  nor  was  it  mentioned  by  the  defendant's  coun- 
sel, on  the  argument  or  in  his  brief.  If  indeed  a  valid  objec- 
tion, it  should  be  considered  as  waived,  under  the  circumstances 
of  this  case. 

The  plaintiff  is  entitled  to  judgment  on  the  demurrer,  with 


CAYUGA— JUNE,  1855.  33? 


Lewis  'V.  Trickey. 


costs.  But  the  defendants  are  at  liberty  to  withdraw  the  de- 
murrer and  to  put  in  an  answer  to  the  complaint  within  twenty- 
days,  on  payment  of  the  costs  of  the  demurrer,  which,  in  cases 
like  the  present,  are  fixed  at  $23. 

[Saratoga  Special  Term,  January  22,  1855.  BocTccs,  Justice.  Affirmed  at 
the  St.  Lawrence  General  Term,  September  3,  1855.  Bockes,  C.  L.  Allen 
and  James,  Justices,  and  above  opinion  adopted,  as  the  opinion  of  the  court.] 


Lewis  vs.  Trickey.  ^  ^1 

ft5    468/ 

Where  one  person  performs  labor  for  another,  the  law  presumes  a  request,  and  a     • — ^— if  / 
promise  to  pay  what  such  labor  is  reasonably  worth,  unless  it  is  understood 
that  it  is  to  be  performed   gratuitously,   or  it  is   performed  under  circum- 
stances which  repel  the  presumption  of  a  promise  that  compensation  shall  be 
made. 

Where  an  employer  ajrrees  to  render  an  equivalent  for  services  performed,  it  is 
no  defense  to  an  action  against  him  to  recover  compensation,  that  he  agreed  tc 
pay  some  third  person  who  has  no  legal  claim  to  the  service,  or  right  to  the 
compensation  ;  especially  where  the  defendant  does  not  show  that  he  has  in 
fact  paid  such  third  jierson. 

When  payment  for  labor  is  to  be  made,  the  law  will  give  it  to  him  who  performi 
the  labor,  unless  some  other  person  can  show  a  better  title. 

The  value  of  services  may  be  proved  by  the  opinions  of  witnesses  who  are  ac 
quainted  with  the  value  of  labor  in  the  vicinity. 

But  a  defendant  cannot  prove  by  witnesses  what  the  plaintiff's  services  were 
worth  over  and  above  his  board,  clothing,  &c.  furnished  by  the  defendant,  with- 
out proving  or  offering  to  prove  that  the  witnesses  knew  the  quantity  or  value 
of  either  item  assumed  by  the  question  to  have  been  furnished. 

/([cither  can  the  defendant  be  permitted  to  ask  a  witness  how  much  under  aJl  the 
circumstances,  were  the  plaintiff 's  services  worth,  over  his  board. 

APPEAL  by  the  defendant  from  a  judgment  entered  at  a 
special  term,  upon  the  report  of  referees.  The  action  was 
for  work  and  labor,  done  upon  the  farm  of  the  defendant  from 
June,  1839,  to  November.  1844,  by  the  plaintiff,  at  $12  per 
month.  The  answer  denied  the  indebtedness  alleged  in  the 
complaint,  and  set  up  as  a  defense  that  the  plaintiff,  some  time 


388  CASES  IN  THE  SUPREME  COURT. 

Lewis  V.  Trickey. 

in  the  year  1839,  then  being  an  indented  apprentice  to  Peter 
Townsend,  under  the  statutes  of  this  state,  was  sent  by  him  to 
the  farm  of  the  said  Peter  Townsend,  in  the  town  of  Bristol, 
which  the  defendant  worked  for  the  said  Peter  ToAvnsend,  to 
learn  the  trade  and  science  of  farming  ;  and  continued  to  reside 
with  the  defendant  on  the  said  farm  until  the  latter  part  of  the 
year  1843  ;  that  while  he  so  resided  with  the  defendant  on  the  said 
farm  he  was  furnished  with  board,  clothing,  schooling  and  pock- 
et money  ;  and  that  whatever  services  were  rendered  by  him, 
during  his  stay  on  said  farm,  were  rendered  and  performed  by 
him  for  the  said  Peter  Townsend  as  his  indentured  apprentice ; 
and  that  none  of  the  said  labor  or  services  were  performed  by 
the  plaintiff,  as  alleged  in  the  complaint,  within  six  years  next 
before  the  commencement  of  this  suit.  The  defendant  also 
claimed  that  the  plaintiff  was  justly  indebted  to  him,  in  the 
sum  of  seven  hundred  dollars  over  and  above  all  offsets  and  pa}'^- 
ments,  for  board,  clothing,  schooling,  one  cow,  one  yoke  of  oxen, 
farming  stock  and  farming  implements,  furnished  by  the  de- 
fendant to  the  plaintiff  at  his  request.  The  answer  was  put  in 
issue  by  a  reply. 

On  the  trial  before  the  referees,  after  the  plaintiff  had  proved 
the  performance  of  the  services,  as  charged  in  the  complaint, 
his  counsel  asked  a  witness  "  what  were  the  services  worth,  in 
your  judgment?"  This  question  was  objected  to  by  the  defend- 
ant's counsel,  and  the  objection  was  overruled  by  the  referees, 
and  the  defendant's  counsel  excepted.  The  witness  answered, 
"  I  should  think  his  services  were  worth  about  ^12  for  the  last 
two  years  he  worked  there,  for  the  third  year  about  ^10  per 
month,  for  the  first  and  second  years  about  $8  per  month." 

All  the  evidence  given  on  the  part  of  the  plaintiff  in  regard 
to  the  value  of  his  services  by  the  month,  was  objected  to  by 
the  defendant's  counsel,  at  the  time  it  was  offered,  because  no 
foundation  had  been  laid  for  such  proof,  and  also  because  it  did 
not  appear  that  the  plaintiff  had  ever  worked  for  defendant  in 
the  capacity  of  a  hired  man,  by  the  month  or  otherwise.  The 
said  objections  were  overruled  by  the  referees,  and  the  evidence 
udmitted,  and  the  defendant's  counsel  excepted.     The  plaintiff 


CAYUGA— JUNE,  1855.  339 


Lewis  v.  Trickey. 


rested  his  case,  and  the  defendant's  counsel  moved  for  a  nonsuit, 
on  the  ground  that  there  was  no  proof  that  the  defendant  ever 
employed  the  plaintiff,  or  promised  to  pay  him  any  thing  foi 
his  services,  or  that  they  were,  in  fact,  of  any  value.  Motion 
denied  by  the  referees,  and  the  defendant's  counsel  excepted. 
A  witness  for  the  defendant  was  asked  the  question,  "  what,  in 
your  opinion,  were  the  services  of  the  plaintiff  worth  to  the  de- 
fendant the  first  year,  under  the  circumstances  he  was  placed 
in,  besides  his  board?"  Objected  to  by  plaintiff's  counsel. 
Objection  sustained  and  question  overruled,  and  the  defendant's 
counsel  excepted.  Question.  "  What  in  your  opinion  Avere  his 
services  worth  over  and  above  his  board  during  the  whole  time 
the  plaintiff  was  with  the  defendant?"  Objected  to  by  the 
plaintiff's  counsel.  Objection  sustained,  and  the  defendant's 
counsel  excepted. 

The  referees,  by  their  report,  found  that  the  plaintiff  lived 
with  and  worked  for  the  defendant  from  the  middle  of  June, 
1839,  to  the  middle  of  November,  1844,  in  all,  five  years  and 
five  months.  That  the  plaintiff  and  defendant  from  the  begin- 
ning to  the  end  of  said  time  believed,  and  acted  on  the  belief; 
that  the  plaintiff  was  the  apprentice  regularly  bound,  of  one 
Peter  Townsend,  by  whom  the  plaintiff  was  placed  in  the  ser- 
vice of  the  defendant.  That  during  all  said  time  the  plaintiff 
was  a  minor.  That  in  1837  an  indenture  of  apprenticeship, 
purporting  to  bind  the  plaintiff  to  said  Peter  Townsend,  was 
executed  within  this  state,  by  the  plaintiff,  by  said  Townsend, 
and  by  the  maternal  grandfather  of  the  plaintiff,  with  whom 
the  plaintiff  was  then  and  had  been  living  for  about  nine  years. 
That  the  plaintiff  so  lived  with  said  grandfather  with  the 
knowledge  of  his  mother,  who  was  then  and  is  yet  living. 
That  the  plaintiff  was  born  out  of  wedlock,  and  that  his  mother 
did  not  execute  any  consent  to  said  mentioned  indenture.  And 
they  found  as  matter  of  law,  that  said  indenture  was  not  made 
and  executed  according  to  the  statute,  was  illegal,  and  of  no 
validity.  They  found  as  matter  of  fact,  that  the  plaintiff's 
labor  during  the  period  he  worked  for  the  defendant  was  of  the 
value  of  $351.     That  during  said  period,   the  defendant   fur 


^90  OASES  IN  THE  SUPREME  COURT. 

Lewis  V.  Trickey. 

nished  the  plaintifif  with  board,  clothing,  schooling,  a  cow,  and 
various  articles,  to  the  value  in  all  of  $284.  And  they  report- 
ed that  there  was  due  the  plaintiff  from  the  defendant,  $67, 
with  interest  from  November  12th,  1844 ;  for  which  sum,  with 
interest  and  costs,  judgment  was  rendered  in  favor  of  the 
plaintiff. 

James  C.  Smith,  for  the  plaintiff, 

S.  V.  R.  Mallory,  for  the  defendant. 

Bp  the  Court,  Johnson.  J.  Where  one  person  performs 
labor  for  another,  the  law  presumes  a  request,  and  a  promise  to 
pay  what  such  labor  is  reasonably  worth,  unless  it  is  understood 
that  it  is  to  be  performed  gratuitously,  or  if  it  is  performed 
under  circumstances  which  repel  the  presumption  of  a  promise, 
that  compensation  shall  be  made.  In  this  case  it  was  under- 
stood that  the  defendant  was  to  make  compensation  for  the 
plaintiff's  services.  Townsend,  who  claimed  the  plaintiff  as  his 
apprentice  at  the  time  he  went  into  the  defendant's  service, 
expressly  testifies  that  he  required  an  equivalent  from  the  de- 
fendant for  the  plaintiff's  services,  in  making  impi'ovements 
upon  the  farm,  such  as  fencing,  clearing  land  and  the  like.  The 
defendant  then  occupied  the  farm  as  the  tenant  of  Townsend, 
working  it  on  shares.  There  being  an  express  agreement  or 
understanding  that  compensation  for  the  services  was  to  be 
made,  the  only  question  that  can  possibly  arise  as  to  the  right 
of  action,  is  whether  the  plaintiff  can  maintain  it  for  the  ser- 
vices thus  rendered.  It  does  not  appear  from  the  evidence  that 
the  defendant  has  ever  made  the  compensation  agreed  upon, 
to  Townsend,  so  that  the  case  is  relieved  from  all  embarrass- 
ment on  that  score.  And  indeed  it  is  difficult  to  see  how 
Townsend  ever  had  any  right  to  demand  or  receive  the  equiv- 
alent stipulated  for.  His  claim  rested  upon  the  indenture  of 
apprenticeship  alone,  and  that  not  having  been  made  or  con- 
sented to  by  any  authorized  person,  was  entirely  void.  (2  Ji.  iS. 
154,  §{  1,  2,  3.)     The  plaintiff's  grandfather,  who  had  brought 


CAYUGA— JUNE,  1855.  391 


Lewis  V.  Triekev. 


him  up  from  infancy,  and  who,  as  appears  from  the  case,  had 
formerly  stood  in  loco  parentis,  could  make  no  claim,  as  he  had 
previously  rllinquished  voluntarily  all  claim  to  the  services. 
And  the  mother,  although  living  at  the  time  of  the  trial,  must 
be  presumed  from  the  evidence,  to  have  relinquished  all  her 
claims  to  control  either  the  plaintiff's  person  or  his  earnings, 
many  years  previous  to  the  time  when  the  services  in  question 
were  rendered.  For  aught  that  appears  therefore,  the  plaintiff 
is  the  only  person  who  has  any  legal  claim  to  his  own  earnings. 
This  case  steers  entirely  clear  of  the  cases  of  Williams  v. 
Finch,  (2  Barb.  S.  C.  /?.  208 ;)  Williams  v.  Hutchinson, 
(3  Cornst.  312 ;)  Livingston  v.  Ackeston,  (5  Cowen,  531,)  and 
the  other  cases  cited  by  the  defendant's  counsel.  Those  cases 
all  turn  upon  the  fact,  that  the  services  for  which  compensation 
was  claimed,  were  from  the  very  nature  of  the  case  to  be  ren- 
•dered  without  compensation,  and  therefore  no  legal  liability 
to  pay  was  ev-er  incurred.  Not  so  here.  The  plaintiff  was  not 
the  defendant's  apprentice,  but  his  hired  servant.  The  defend- 
ant expected  and  agreed  to  render  an  equivalent  for  the  ser- 
vices, and  it  is  no  answer  for  him  to  say  that  he  agreed  to  pay 
some  person  who  has  no  legal  claim  to  the  service  or  the  com- 
pensation ;  especially  as  he  does  not  shoAv  that  he  has  paid 
any  one.  Where  payment  is  to  be  made,  the  law  will  give  it  to 
him  who  performs  the  labor,  unless  some  other  person  can  show 
a  better  title. 

The  referees  decided  correctly  in  allowing  the  plaintiff  to 
prove  the  value  of  his  services  by  the  opinions  of  witnesses  who 
were  acquainted  with  the  value  of  labor  in  the  vicinity.  They 
also  decided  correctly,  I  think,  in  rejecting  the  evidence  on  the 
same  subject  offered  by  the  defendant.  There  is  no  such  diffi- 
culty in  reconciling  the  decisions  as  the  defendant's  counsel 
seems  to  suppose.  The  defendant  offered  to  prove  by  his  wit- 
nesses what  the  plaintiff's  services  were  worth  over  and  above 
his  board,  clothing  and  schooling  furnished  by  the  defendant, 
without  proving  or  offering  to  prove  that  the  witnesses  knew 
the  quantity  or  value  of  either  item  assumed  by  the  question  to 
have  been  furnished.     This,  as  the  referees  properly  suggest. 


S92  OASES  IN  THE  SUPREME  COURT. 

Bri<rgs  V.  Palmer. 

in  making  their  decision,  would  be  putting  the  witness  in  their 
place  and  making  him  judge  of  the  entire  case.  They  held 
that  the  defendant  might  prove  the  value  of  the  whole  on  each 
side.  Of  the  same  character,  and  liable  to  the  same  objections, 
is  the  evidence  offered  in  this  form  :  How  much  under  all  the 
circumstances  were  the  plaintiff's  services  worth  over  his  board? 
The  form  of  the  question  implies  the  existence  of  some  modif}^- 
ing  or  qualifying  circumstances,  which  the  witness  might  take 
into  the  account,  and  pass  upon,  instead  of  disclosing  them  in 
the  evidence  for  the  referees  to  pass  upon. 

There  was,  in  my  judgment,  no  error  committed  at  the  trial, 
nor  in  the  conclusions  of  law,  upon  the  facts  established,  and 
the  judgment  should  be  affirmed. 

[Cayuga  General  Term,  June  4,  1855.  Sclden,  T.R.  Strong  ancUoA?isoM, 
Justices.] 


William  S.  Briggs  vs.  John  J.  Palmer,  special  receiver. 

Where  assignees,  under  an  assignment  made  for  the  benefit  of  creditors,  reconvey 
to  the  assignor  the  real  estate  embraced  in  such  assignment,  without  having 
paid  and  satisfied  the  debts  for  the  payment  of  which  the  trust  estate  was 
creafed,  such  reconveyance  is  absolutely  void,  at  least  as  to  all  ci-editors 
whose  debts  wore  provided  for  in  the  assignment,  and  which  remained  unpaid 
at  the  date  of  the  reconveyance. 

And  in  a  contest  between  a  person  claiming  title  under  and  in  consonance  with 
tho  trusts  created  by  the  assignment,  and  an  ii>cumbrancer  of  the  title  attempt- 
ed to  be  conveyed  by  the  trustees  in  contravention  of  such  trusts,  tlie  validity 
of  tho  mortgage  will  be  in  no  way  helped  by  the  fact  that  the  mortgagees,  at  the 
lime  of  taking  it,  had  no  actual  notice  of  the  existence  of  a  claim  against  the 
trust  estate,  or  of  the  assignment,  and  reconveyance. 

The  assignment,  and  the  reconveyance,  are  matters  of  record,  which  the  statute 
makes  sufficient  notice  to  ajl  subsequent  purchasers  and  incumbrancer.  And 
such  purchaseis  or  incumbrancers,  liaving  constructive  notice  of  the  assign- 
ment, are  put  upon  inquirj-  as  to  all  claims  and  rights  under  it. 

Trustees  cannot,  hy  a  recital  in  a  reconveyance  of  the  assigned  property,  contrary 
to  the  fact,  aflfect  the  interests  of  cesiuis  que  trust.  Therefore  a  recital  that 
the  debts  of  the  assignor  have  all  been  paid,  will  be  of  no  avaiL 


MONKOE— SEPTEMBER,  1S55.  393' 

Briggs  V.  Palmer. 

After  a  debtor  has  assigned  his  real  estate  in  trust  for  the  benefit  of  cn;ditors,  lie, 
having  no  title,  cannot  create  an  incumbrance  upon  the  estate.  A  mortgage 
executed  by  him  will  therefore,  at  most,  only  operate  as  an  assignment  or  equi- 
table mortgage  of  his  residuary  interest,  after  the  trust  sliall  have  been  fully 
executed.  Under  this,  the  mortgagee  may,  it  seems,  pay  a  debt  existing 
against  the  trust  estate,  before  a  sale  of  the  trust  property  to  pay  the  debt,  and 
a  transfer  of  the  title. 

But  after  the  title  has  parsed  to  a  bona  fide  purchaser  at  a  judicial  sale  ordered 
for  the  purpose  of  satisfying  a  previous  debt  of  the  assignor,  there  can  be  no 
redemption  by  any  one  standing  in  the  position  of  the  assignor,  or  claiming 
under  him  subsequent  to  the  creation  of  the  trust  estate. 

rpHIS  was  an  appeal,  by  the  defendant,  from  a  judgment 
JL  entered  at  a  special  term.  The  relief  demanded  by  the 
complaint  was  that  the  defendant  be  directed  to  release  and 
discharge  certain  premises  from  the  lien  and  operation  of  a  mort- 
gage thereon,  executed  by  Cornelius  Hasten  and  wife  to  Joseph 
D.  Beers,  president  of  the  North  American  Trust  and  Banking 
Company,  on  the  1st  of  November,  1838 ;  and  that  he,  and  all 
persons  claiming  an  interest  in  said  mortgage  subsequent  to  the 
commencement  of  this  action  be  perpetually  enjoined  from  fore- 
closing the  same,  or  enforcing  the  lien  thereof  against  the  prem- 
ises described  in  said  mortgage.  The  action  was  tried  at  the 
circuit  in  Yates  county  in  November,  1853,  before  Mr.  Jus- 
tice Welles,  without  a  jury,  when  after  hearing  the  proofs 
and  allegations  of  the  respective  parties,  the  following  facts 
were  found  by  the  court,  to  Avit :  That  Cornelius  Masten,  on  the 
21sf  day  of  April,  1834,  being  in  embarrassed  circumstances, 
made  a  general  assignment  of  all  his  property  and  effects  to  Joel 
Dorman,  Evert  Van  Buren  and  James  C.  Robinson,  in  trust  for 
the  benefit  of  his  creditors,  as  mentioned  and  set  forth  in  the 
complaint.  That  said  deed  of  assignment  was  duly  acknowl- 
edged and  recorded  in  the  office  of  the  clerk  of  Yates  county,  on 
the  29th  day  of  April,  1834,  in  the  book  of  deeds,  as  a  deed  con- 
veying real  estate.  That  immediately  after  the  execution  and 
delivering  of  the  said  deed  of  assignment,  Dorman,  Robinson 
and  A^an  Buren,  as  assignees  and  trustees  under  the  same,  ac- 
cepted the  trust  therein  conferred,  and  entered  upon  the  execu- 
tion of  the  said  trust,  and  for  that  purpose  took  into  theii 
Vol.  XX.  50 


394  CASES  m  THE  supreme  colrt. 

Briggs  V.  Palmer. 

possession  and  under  their  control  the  principal  part  of  the 
assigned  property.  That  at  the  time  of  making  the  s^d  assign- 
ment Joel  Dorman  was  liable  as  security  and  indorser  for  Mas- 
ten  to  a  large  amount,  the  payment  of  which  was  provided  for 
in  and  by  the  deed  of  assignment  as  mentioned  in  the  complaint. 
That  after  making  said  assignment,  Dorman  in  his  lifetime  ad- 
vanced and  paid  large  sums  of  money  for  Hasten  as  his  indorser, 
the  payment  of  which  was  provided  for  in  said  assignment. 
That  Dorman  died  on  the  26th  day  of  March,  1836,  intestate,  as 
mentioned  in  the  complaint,  and  that  Masten  was  indebted  to 
Dorman  at  the  time  of  his  death,  by  reason  of  advances  made 
by  him  as  aforesaid.  That  after  his  death  E-euben  Crawford, 
Calvin  S.  Coates  and  David  B.  Prosser  were  duly  appointed  ad- 
ministrators, as  mentioned  in  the  complaint.  That  Prosser,  one 
of  the  administrators  of  Dorman,  after  his  appointment,  and  some 
time  in  the  year  1837,  called  upon  Robinson,  one  of  the  surviv- 
ing assignees  and  trustees  under  the  deed  of  assignment  of  the 
21st  day  of  April,  1834,  and  requested  payment  of  the  sum  ad- 
vanced by  Dorman  in  his  lifetime,  for  the  use  and  benefit  of 
Masten,  and  informed  Robinson  of  the  claim  of  Alva  Clark 
against  Dorman's  administrators,  as  mentioned  in  the  complaint. 
That  the  administrators  of  Dorman,  on  the  25th  day  of  April, 
1839,  filed  their  bill  in  the  court  of  chancery,  before  the  \ice 
chancellor  of  the  seventh  circuit,  against  Masten,  Robinson  and 
Van  Buren,  to  compel  payment  of  the  debts  alleged  to  be  due 
to  them,  as  the  representatives  of  Dorman,  and  to  have  been 
provided  for  under  the  assignment.  That  no  notice  of  lis  pendens 
w^as  filed.  That  after  the  final  decree  or  judgment  was  obtained 
in  that  suit,  certain  premises  were  sold  under  the  same,  and 
purchased  by  the  plaintiff,  for  the  use  and  purpose  mentioned 
in  the  complaint,  and  the  premises  duly  conveyed  to  the  plain- 
tiff by  the  referee,  and  the  possession  thereof  taken  by  him  un- 
der his  deed,  and  that  he  still  so  holds  the  same.  That  on  the 
17th  day  of  September,  1838,  Robinson  and  Van  Buren,  as  sur- 
vinng  assignees  and  "trustees  under  the  deed  of  assignment  of 
the  21st  of  April,  1834,  under  their  hands  and  seals,  after  recit- 
ing the  making  of  the  assignment  as  aforesaid,  and  that  the  trust 


MONROE— SEPTEMBER,  1855.      '  395 


Briggs  V.  Palmer. 


bad  been  executed,  released  and  reconveyed  to  Hasten,  all  the 
assigned  property  then  remaining  in  their  hands  undisposed  of, 
among  which  were  the  premises  purchased  by  the  plaintiff,  which 
said  deed  or  release  was  duly  acknowledged  and  recorded  in  the 
office  of  the  clerk  of  Yates  county,  on  the  12th  day  of  Novem- 
ber. 1838,  as  a  deed  of  real  estate.  That  Robinson,  A^an  Buren 
and  Masten,  at  the  time  of  making  and  executing  said  release, 
had  notice  of  the  claim  of  the  personal  representatives  of  Dor- 
man  upon  the  assigned  property.  That  Robinson  and  Van  Bu- 
ren made  and  executed  the  said  release  in  contravention  of  the 
provision  of  said  deed  of  assignment  and  in  violation  of  the  trust 
therein  expressed.  That  on  the  1st  of  November,  1838,  Masten 
and  his  wife  made,  executed  and  delivered  a  mortgage  to  Joseph 
D.  Beers,  president  of  the  North  American  Trust  and  Banking 
Company,  on  the  premises  previously  purchased  by  the  plaintiff, 
for  $9000,  payable  in  one  year  with  interest ;  which  mortgage 
was  recorded  in  the  office  of  the  clerk  of  Yates  county,  on  the 
4th  day  of  May,  1839.  That  at  the  time  of  the  recording  of 
the  said  mortgage,  no  advancement  or  payment  had  been  made 
to  Masten  on  the  account  thereof  That  on  the  21st  day  of 
May,  1839,  this  mortgage  was  delivered  to  the  North  American 
Trust  and  Banking  Company,  and  that  company  issued  and  de- 
livered to  Masten  ninety  shares  of  the  stock  of  said  company  at 
$100  per  share,  amounting  to  $9000,  as  the  consideration  for 
said  morto-acre.  That  said  stock  was  issued  and  delivered  to 
Masten  in  good  faith,  without  actual  notice  of  the  claim  of  Dor- 
man  or  his  personal  representatives.  That  the  abstract  of  title 
made  by  the  clerk  of  Yates  county  for  the  said  company,  bear- 
ing date  the  5th  day  of  May,  1839,  and  upon  which  the  agents 
of  the  company  acted  in  receiving  said  mortgage  and  issuing  the 
stock  thereon,  did  not  contain  the  said  assignment  of  the  21st 
of  April,  1834,  or  the  release  of  the  17th  September,  1838,  or 
any  note,  reference  or  allusion  to  them  or  either  of  them.  That 
Masten  continued  to  reside  in  one  of  the  dwelling  houses  upon 
the  premises  from  the  time  of  making  the  assignment  until  the 
time  of  his  death,  on  31st  October,  1850.  That  Robinson,  one 
of  the  survivino;  assi<rnees.  is  insolv'ent,  and  has  been  so  since 


3.06  CASES  IX  THE  SUPREME  COUIIT, 

Briggs  V.  Palmer. 

1840,  and  that  the  defendant,  as  the  special  receiver  of  the 
North  American  Trust  and  Banking  Company,  is  the  assignee 
and  holder  of  the  mortgage  given  by  Masten  and  wife  to  Beers, 
as  mentioned  in  the  answer  of  the  defendant.  The  court  found, 
as  conclusions  of  law  from  the  foregoing  facts,  1st.  That  the 
release  or  reassignment  of  the  17th  September,  1838,  executed 
by  Robinson  and  Van  Buren  to  Masten,  as  between  the  parties 
thereto,  was  absolutely  void,  and  that  no  title  passed  under  the 
same  to  Masten,  so  far  as  the  claim  of  the  personal  representa- 
tives of  Dorman  was  concerned.  2d.  That  the  plaintiff  in  this 
action  as  the  purchaser  of  the  premises  under  the  decree  obtained 
by  the  personal  representatives  of  Dorman,  was  entitled  to  have 
and  hold  the  premises  conveyed  to  him  by  the  referee  free,  clear 
and  discharged  from  the  lien  of  the  mortgage  mentioned  in  the 
complaint  given  by  Masten  and  wife  to  Beers,  as  president,  &c. 
'The  folloAving  opinion  was  given  by  the  justice,  at  the  special 
term : 

"Wklles,  J.  The  re-vised  statutes  provide  that  when  the 
trust  shall  be  expressed  in  the  instrument  creating  the  estate, 
every  sale,  conveyance,  or  other  act  of  the  trustees,  in  contra- 
vention of  the  trust,  shall  be  absolutely  void.  (1  A*.  S.  730,  §  65.) 
The  evidence  establishes  that  the  trusts  created  in  and  by  the 
assignment  of  C.  Masten  to  Dorman,  Van  Buren  and  Robinson, 
were  not  all  executed  at  the  time  of  the  reassignment  by  the 
two  surviving  assignees  to  Masten.  The  decree  or  judgment  in 
the  suit  by  Dorman's  administrators  against  Masten  and  the 
two  surviving  assignees.  Van  Buren  and  Robinson,  shows  that 
a  considerable  debt  or  liability  to  Dorman,  the  payment  of  which 
was  provided  for  liy  the  assignment,  and  being  the  same  debt 
which  the  judgment  in  that  case  made  chargeable  upon  the  lands 
in  question,  was  unpaid  at  the  time  of  the  reassignment,  and  has 
remained  unpaid  to  the  present 'time.  The  assignment  was  ex- 
pressed to  be  in  trust  for  the  payment  of  debts.  The  reassign- 
ment was  therefore,  as  between  the  parties  to  it  at  least,  clearly 
in  contravention  of  the  trust,  and  void. 

The  real  question  in  this  case,  and  one  iji  which  I  have 


MONROE— SEPTEMBER,  1855.  397 

Briggs  V.  Palmer. 

considerable  difBculty,  is  whether  under  the  circumstances  the 
defendant  and  those  whose  interests  he  represents,  are  to  be 
affected  by  the  fact  that  the  trusts  were  unexecuted.  The  re- 
assignment, which  was  duly  recorded  before  the  consideration 
for  the  mortgage  was  advanced  to  Masten,  recited  that  the  trusts 
had  been  executed.  It»was  given  more  than  four  years  after 
the  instrument  creating  the  trusts  was  executed,  and  nearly 
two  years  after  the  death  of  Dorman.  Masten,  the  assignor, 
was  in  possession  of  the  premises  in  question,  a  part  of  the  as- 
signed property,  from  the  date  of  the  assignment,  until  his  death 
in  October,  1850,  and  no  steps  were  taken  by  the  assignees  to 
disturb  him  or  to  dispose  of  this  property.  It  is  contended  on 
the  part  of  the  defendant,  that  looking  at  the  provisions  of  the 
assignment,  and  the  nature  of  the  property  assigned,  abundant 
time  had  elapsed  to  enable  the  assignees  to  complete  the  execu- 
tion of  the  trust,  and  to  show  that  if  it  AVas  not  executed  even 
at  the  death  of  Dorman,  they  had  been  guilty  of  culpable  negli- 
gence ;  that  if  under  such  a  state  of  facts  the  presumption  that 
the  assignees  had  done  their  duty  and  fully  executed  the  trusts 
would  not  arise,  still  when  the  surviving  assignees  declare  the 
trusts  executed,  and  reconvey  the  property,  the  plaintiff  should 
be  held  precluded  from  setting  up  the  contrary,  as  against  a 
bona  fide  incumbrancer  without  notice,  who  may  be  presumed 
to  have  parted  with  his  money  and  taken  the  mortgage  upon  the 
faith  of  the  state  of  thino's  referred  to.  Admitting  the  existence 
of  these  presumptions,  I  am  nevertheless  of  the  opinion  that 
they  are  not  conclusive,  but  may  be  rebutted  and  overthrown  by 
evidence,  Avhich  has  been  completely  done.  Dorman  was  a 
cestui  que  trust  under  the  assignment,  as  well  as  a  trustee.  Not 
quite  two  years  had  elapsed  after  the  assignment  was  executed, 
when  he  died.  The  moneys  for  which  he  was  liable,  and  for 
which  the  decree  was  made,  or  some  part  of  them,  had  not  been 
paid  at  his  death,  but  Avere  paid  afterwards  by  his  administra- 
tors. The  trust  as  to  him  ceased  at  his  death,  and  passed  to 
nis  co-trustees,  but  his  interest  as  cestui  que  trust  survived  to 
his  personal  representatives.  They  commenced  their  suit  in 
equity  to  have  them  ascertained  and  adjudicated,  very  soon  aflei 


3  93        CASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Palmer. 

tlie  death  of  their  iutestate,  and  that  suit  was  protracted  by 
causes  for  which,  so  far  as  the  papers  show,  they  are  not  ac- 
countable, until  1852,  and  a  short  time  before  this  action  was 
commenced.  When  the  Trust  Company  took  their  mortgage, 
or  rather  when  they  advanced  their  stock  upon  it,  the  records 
in  the  county  clerk's  office  gave  them  »otice  that  Masten  held 
under  the  deed  of  reassignment  by  the  assignees  to  him,  and 
the  law  said  to  them,  that  if  the  recital  in  that  deed,  that  the 
trusts  were  executed,  was  untrue,  the  deed  was  given  in  contra- 
vention of  the  trust,  and  was  void.  I  incline  to  think,  therefore, 
that  they  acted  at  the  risk  of  that  turning  out  to  be  the  fact. 
If  the  mortgage  had  been  given  by  the  assignees  and  the  con- 
sideration paid  to  them,  it  would  probably  have  been  a  valid 
incumbrance  if  done  in  good  faith  on  the  part  of  the  mortgagee, 
and  provided  also  the  terms  of  the  assignment  would  authorize 
the  assignees  to  raise  money  by  mortgaging  the  trust  property 
for  the  purposes  of  the  trusts.  In  such  case  the  person  advan* 
ciug  the  money  would  not  be  responsible  for  its  proper  applica- 
tion. But  such  was  not  this  transaction.  The  money  was  not 
loaned  to  the  trustees,  but  to  Masten  in  his  own  right,  and  the 
mortgage  given  by  him  as  security  depended  for  its  value  as  a 
security,  upon  his  title  to  the  property  mortgaged,  and  that  de- 
pended upon  the  reassignment  by  the  surviving  assignees^  to 
him,  which  has  been  shown  to  have  been  in  contravention  of  the 
trust,  and  which  the  statute  declares  to  be  absolutely  void. 

The  defendant's  counsel  contends  that  the  utmost  liability  of 
the  defendant  is  to  pay  the  plaintiff  the  sum  paid  by  him  for 
the  lands  in  question  at  the  referee's  sale  :  upon  doing  which  the 
sale  to  the  plaintiff  will  be  null  and  void.  But  I  do  not  think 
so.  The  plaintiff  has  either  a  complete  legal  title  wholly  dis- 
charged from  the  mortgage,  or  he  has  such  title  subject  to  the 
mortgage.  I  am  not  aware  of  any  principle  by  which  the  de- 
fendant has  the  right  to  claim  an  equity  of  redemption. 

There  must  be  judgment  for  the  plaintiff  substantially  ac- 
cording to  the  prayer  of  his  complaint,  but  no  costs  to  be  allowci 
to  either  party  as  against  the  othei'." 


MONROE— SEPTEMBEK,  18o5.  399 

Briggs  V.  Palmer. 

A  judgment  was  accordingly  entered  declaring  and  adjudging 
that  the  deed  of  release  executed  by  Robinson  and  Van  Buren, 
as  surviving  assignees,  to  Masten,  -was  void  as  between  the  par- 
ties to  this  action,  and  all  persons  claiming  or  to  claim  through 
or  Tinder  them,  or  either  of  them,  subsequent  to  the  commence- 
ment of  this  action.  It  was  further  ordered  and  adjudged  that 
the  defendant  John  J.  Palmer,  as  special  receiver  of  the  North 
American  Trust  and  Banking  Company,  be  authorized  and  di- 
rected to  execute  and  deliver  to  the  plaintiff  in  this  action,  a 
good,  valid  And  suflScient  release  in  law,  releasing  and  discharg- 
ing the  premises  mentioned  and  described  in  the  complaint,  as 
the  premises  purchased  by  the  plaintiff  at  the  sale  made  by  the 
referee  on  the  22d  day  of  June,  1852,  from  the  lien  and  opera- 
tion of  the  mortgage  executed  by  Cornelius  Masten  and  wife  to 
Joseph  D.  Beers,  president  of  the  North  American  Trust  and 
Banking  Company,  bearing  date  the  first  day  of  November, 
1838.  And  it  was  further  ordered  and  adjudged  that  the  said 
John  J.  Palmer,  and  all  persons  claiming  or  to  claim  under  and 
through  him,  any  interest,  right  or  title  to  said  mortgage,  or  the 
moneys  intended  to  be  secured  by  the  same,  subsequent  to  the 
commencement  of  this  action,  be  perpetually  enjoined  from  fore- 
closing the  said  mortgage,  or  in  any  way  or  manner  enforcing 
or  attempting  to  enforce  the  lien  of  said  mortgage,  so  executed 
by  said  Masten  and  wife  to  the  said  Joseph  D.  Beers,  against 
the  said  premises  so  directed  to  be  released,  or  any  part  or  parcel 
thereof  And  it  was  further  adjudged  that  neither  party  have 
costs  as  against  the  other  party. 

B.  W.  Bouney.  for  the  appellant.  I.  The  defendant  holds 
t!ie  position  of  a  bona  fide  purchaser  (mortgagee)  for  full  con- 
sideration paid,  without  notice  ;  and  is  entitled  to  all  the  benefit 
and  protection  which  that  position  affords.  This  is  not  ques- 
tioned, and  is  expressly  found  by  the  court  below. 

H.  The  judgment  appealed  from  rests  upon  two  conclusions 
of  law.  stated  by  the  justice  before  whom  the  action  was  tried, 
at  special  term;  in  both  of  which,  as  the  appellant  insists,  there 
IS  error.     (1.)  The  reassignment,  dated  17th  September,  1838 


4 CO  CASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Palmer. 

executed  by  Robinson  and  Van  Buren,  surviving  assignees,  to 
Masten,  is  not,  as  against  this  defendant,  a  conveyance  in  con- 
travention of  the  trusts  expressed  in  the  assignment,  and  there- 
fore is  not  void,  as  is  supposed.  (1  R.  S.  730,  §  65.)  On  the 
contrary,  such  reassignment  purports  to  be  and  upon  its  face  is 
in  strict  accordance  with  and  a  mere  performance  of  the  trusts 
of  the  assignment.  {Burrill  on  Assignments,  494.  Brashear 
V.  West,  7  Peters,  608.  Halsey  v.  Whitney,  4  Mason,  222,  3. 
Lazarus  v.  Commonwealth  Ins.  Co.,  19  Pick.  81.)  The  as- 
signees, under  the  assignment  in  question,  had  full  power  to  sell 
and  convey  the  assigned  property,  or  any  part  of  it ;  and  no 
purchaser  was  bound  to  ascertain  the  necessity  of  the  sale,  or  to 
inquire  as  to  the  existence  of  unpaid  debts,  or  to  see  to  the  ap- 
plication of  the  purchase  money.  In  case  of  any  misappropria- 
tion of  the  fund,  the  creditors  must  seek  their  remedy  against 
the  assignees.  (1  R.  S.  729,  §§  60,  Q%  67.  Hill  on  Trustees, 
342,  Am.  ed.  2  Story's  Eq.  Jur.  §§  1127, 1131  to  1134.  Gard- 
ner V.  Gardner,  3  Mason,  178.)  The  assignees  not  only  had 
the  power,  but  it  was  their  duty,  after  payment  of  debts,  to  re- 
convey  the  residue  of  the  assigned  property  to  the  assignor,  and 
the  same  rules  and  principles  apply  to  a  purchase  made  after 
such  reconveyance  as  to  a  purchase  directly  from  the  assignees 
themselves.  The  assio;nees  were  the  agents  and  trustees  of  the 
creditors  entitled  to  the  benefit  of  the  assignment.  If  the  cred- 
itors were  not  paid,  the  execution  of  the  reassignment,  with  its 
recitals,  was  a  fraud,  the  consequences  of  which  must  be  borne 
by  the  creditors  rather  than  by  a  bona  fide  purchaser.  In  this 
case  there  was  nothing  to  put  a  purchaser  upon  inquiry  as  to 
the  bona  fides  of  the  reconveyance,  or  to  raise  a  suspicion  that 
Dorman's  debt  had  not  been  paid ;  o^  the  contrary,  all  the  cir- 
cumstances were  in  favor  of  the  integrity  of  the  transaction.  I^ 
was  the  duty  of  the  assignees  to  sell  the  assigned  property,  and 
close  their  trust  without  delay,  and  full  time  had  elapsed  to 
raise  the  presumption  that  they  had  done  so,  and  that  the  reci- 
tals in  the  reassignment  were  true.  {Burrill  on  Assignments, 
451.  Hart  v.  Crane,  7  Paige,  37.)  Dorman  was  a  preferred 
creditor  and  also  assignee,  and  the  presumption  that  his  debt 


MONROE— SEPTEMBER,  1855.  40] 

Briggs  V.  Palmer. 

had  been  paid,  especially,  arose.  Masten  resided  on  and  was  in 
full  possession  of  the  premises  in  question,  which,  as  in  favor  of 
a  bona  fide  purchaser,  against  Dorman's  representatives,  is  con- 
clusive to  support  the  reconveyance,  and  the  title  of  such  pur- 
chaser derived  through  it.  If  no  conveyance  had  been  found  on 
the  record,  the  facts  of  the  case  authorize  the  presumption  that 
a  reconveyance  had  been  made.  {Hill  on  Trustees.  556,  7,  8, 
and  cases  there  cited.  England  v.  Slade,  4  Term  Rep.  682 
1  R.  S.  726,  §  62  to  67.)  The  fact  that  Masten  remained  ap- 
pnrent  owner  and  in  possession  and  occupation  of  the  premises 
in  question  from  the  time  of  making  the  assignment,  is,  as 
against  a  bona  fide  creditor  or  purchaser,  evidence  of  fraud  in 
the  assignment,  unless  the  other  assigned  property  was  suflBcient 
to  pay  all  the  debts  of  the  assignor,  as  to  which  there  is  no  evi- 
dence. (2.)  The  plaintiff  in  this  action,  by  his  purchase  under 
the  decree  in  the  case  of  Dorman's  administrators  against  Mas- 
ten,  &c.  has  acquired  no  title  to  the  premises  in  question,  as 
against  the  mortgage  now  held  by  the  defendant  as  special  re- 
ceiver. The  bill  of  Dorman's  administrators  against  Masten, 
«fcc.  was  not  framed  or  intended  to  reach  this  real  estate  or.  any 
part  of  the  assigned  property  ;  and  no  notice  of  lis  pendens  was 
filed.  The  decree  of  the  chancellor,  under  which  the  plaintiff's 
title  (if  any)  is  derived,  gives  no  right  to  or  interest  in  the  prem- 
ises in  question,  as  against  the  defendant's  mortgage.  The  pro- 
ceedings under  the  chancellor's  decree,  the  judgment  of  the 
supreme  court  founded  thereon,  and  the  sale  and  conveyance  un- 
der such  judgment,  gave  to  the  plaintiff  no  right  or  title  beyond 
what  was  adjudged  by  the  chancellor;  and  certainly  none  as 
against  this  defendant,  who  was  no  party  to  that  suit. 

III.  The  assignment  under  which  the  plaintiff  claims  was 
only  a  security  for  the  payment  of  the  debt  alleged  to  have  been 
owing  by  Masten  to  Dorman  ;  and,  so  far  as  this  real  estate  is 
concerned,  was,  in  effect,  a  mortgage.  The  proceedings  and  sale 
in  the  suit  of  Dorman's  administrators  against  Masten,  <fec. 
amount  merely  to  a  foreclosure  of  that  mortgage.  And,  even 
if  we  admit  that  Dorman's  representatives  had  the  prior  lien  on 
the  premises,  the  plaintiff's  title,  derived  under   said  decrees 

V^OL.  XX.  51 


402  OASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Palmer. 

and  sale,  is  subject  to  the  defendant's  right,  as  a  subsequent 
incumbrancer  not  made  party  to  the  foreclosure  suit,  to  redeem 
on  payment  of  the  amount  bidden  and  paid  by  the  plaintiif, 
($100,)  with  interest  from  the  time  of  payment.  No  demand 
"vvns  made  on  the  defendant  to  redeem  before  the  commencement 
of  this  action,  and  therefore  the  plaintiff  cannot  claim  costs. 

D.  B.  Prosser,  for  the  respondent.  I.  The  final  decree  or 
judgment  of  the  administrators  of  Dorman  against  Hasten, 
Van  Buren  and  Robinson,  is  conclusive  evidence  of  the  follow- 
ing facts :  The  indebtedness  of  Hasten  to  Dorman  at  the  time 
of  Dorman's  death  ;  that  the  payment  of  such  indebtedness 
was  secured  and  provided  for  in  and  by  the  deed  of  assignment 
made  by  Hasten,  bearing  date  21st  April",  1834  ;  that  such  in- 
debtedneess  remained  unpaid  at  the  time  of  rendering  such 
final  judgment  or  decree  ;  that  said  debt  was  a  lien  upon  the 
assigned  property  ;  and  that  the  reassignment  of  Robinson  and 
Van  Buren  to  Hasten,  dated  17th  September,  1838,  was  in 
contravention  of  the  trnst  expressed  in  the  said  deed  of  assign- 
ment;  and  in  fraud  of  the  rights  of  Dorman  and  his  estate. 
{Candee  v.  Lord.  2  Comst.  269.) 

II.  The  release  or  reassignment  from  Robinson  and  Van 
Buren,  the  surviving  assignees,  to  Hasten  having  been  made 
before  the  trust  created  in  the  deed  of  assignment  had  been 
executed,  leaving  the  debt  due  to  Dorman  oi*  his  estate  unpaid, 
was  in  direct  cantravention  of  such  trust,  and  therefore  abso- 
lutely  void  ;  hence  no  title  passed  to  Hasten  thereby.  (1  R.  S. 
730,  §  65.  Cruger  v.  Jones,  18  Barb.  467.  Chitty  on  Con- 
tracts, 229.     6  Tannt.  369.) 

III.  The  defendant  occupies  the  same  position  and  relation 
ns  the  mortgagee,  and  is  entitled  to  the  same,  but  no  greater 
C(j[uities.  The  assignment  having  been  recorded  long  before 
the  mortgage  in  question  was  executed,  the  record  thereof  was 
constructive  notice  to  the  mortgagee,  that  Hasten  had  no  inter- 
est which  he  could  mortgage.  (12  John.  343.  1  Selden,  301. 
1  IloH-ard\s  Appeal  Cases,  475,  476,  477  and  cases  there  cited.) 
The  omission  of  the  clerk  to  notice  the  assignment  in  his  cer- 


MONROE— SEPTEMBER,  1855.  493 


Brisgs  V.  Palmer. 


tificate  of  search  of  title,  upon  which  the  mortgagee  acted  in 
taking  the  mortgage,  cannot  aflFect  or  prejudice  the  rights  of 
the  phiintiff  under  the  decree. 

IV.  The  recital  in  the  release  or  reassignment  "  that  the 
trust  had  been  executed  &c.,"  is  not  even  prima  facie  evi- 
dence of  that  fact  as  against  the  plaintiff,  for  the  following 
reasons  :  (1.)  The  plaintiff  does  not  claim  through  this  re^ease, 
but  in  hostility  thereto.  (2.)  Recitals  are  only  evidence 
against  the  parties,  their  privies,  or  those  claiming  under  or 
through  the  instrument  containing  the  recital.  (3.)  Recitals 
are  no  higher  evidence  than  the  declarations  of  parties  by  which 
they  may  be  estopped. 

V.  The  defendant  in  his  answer  does  not  claim  that  the  t7'7ist 
had  been  executed.  To  avail  himself  of  such  a  defense  it 
should  have  been  set  up  in*  the  answer  ;  nor  is  he  entitled  to 
the  benefit  of  any  presumption  arising  from  the  lapse  of  time. 
Presumptions  are  only  allowed  to  prevail  where  it  is  the  duty 
of  some  party  or  person  to  do  an  act,  the  omission  of  which 
would  amount  to  a  wrong;  and  no  presumption  can  in  a?i2/  case 
he  allowed  to  prevail,  where  the  proof,  as  in  this  case,  is  posi- 
tive that  the  trust  had  not  been  executed.  Presumptions  are 
never  allowed  where  the  proof  establishes  the  thing  to  the  con- 
trary. It  is  only  in  the  absence  of  proof  that  presumptions 
are  resorted  to. 

A^I.  The  defendant  has  not  by  his  answer  put  himself  in  a 
situation  to  avail  himself  of  the  defense,  that  from  the  lapse  of 
time  and  the  other  facts  in  the  case,  the  mortoracree  had  a  right 
to  presume  the  trust  executed,  for  he  denies  notice  of  the  as- 
vsignmcnt  in  fact ;  and  so  far  as  the  evidence  in  the  case  goes 
it  shows  that  he  took  the  mortgage  without  notice,  in  fact,  of 
the  assignment ;  if  so,  it  follows  that  there  was  no  presumption 
whatever  for  him  to  act  upon.  He  could  not  presume  a  trust 
executed  of  which  he  had  no  knowledge. 

VII.  The  personal  representatives  of  Dorman  cannot  be  af- 
fected by  the  acts  or  omissions  of  the  surviving  assignees,  after 
the  death  of  Dorman.  Had  the  surviving  assignees,  after  Dor- 
man's  death,  wJiolly  renounced  the  trust,  and   reconveyed  the 


404        CASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Palnior 

asssigned  property  to  Masten,  still  the  property  Avoula  remain 
liable  for  the  delits  of  Masten,  provided  for  in  his  assignment, 
into  whose  hands  soever  the  same  might  pass.  (4  Jo/ai.  C/i. 
136.  Cruise's  Dig.  vols,  1,  2,  ch.  4,  §  1,  siibd.  8,  p.  488. 
1  McCord's  Ch.  132.  2  John.  Ch.  343.  7  Barb.  354.  1  Seld. 
301.     3  John.  Ch.  344.     Story's  Eq.  Jur.  §  400.) 

VIIL  The  judgment  of  the  court  directing  a  release  of  the 
mortgage  and  enjoining  the  foreclosure  thereof,  is  in  accordance 
with  the  well  settled  principles  of  equity.  {Nicol  v.  The  Town  of 
Himtiiigton,  1  John.  Ch.  166.  Apthorp  v.  Comstock,  2  Paige, 
482.  Pettit  V.  Shepherd,  5  id.  493.  Van  Doren  v.  The 
Mayor  <^c.  of  New  York,  9  id.  388.) 

By  the  Court,  Johnson,  J.  The  assignees  of  Masten  held 
the  real  estate  in  question  in  trust  'to  sell  for  the  benefit  of 
creditors.  The  trust  was  expressed  in  the  assignment,  by 
Avhich  the  estate  was  created,  and  vested  in  the  assignees,  and 
IS  one  authorized  by  statute.  The  assignees,  the  moment  they 
took  the  assignment,  became  trustees  for  the  creditors,  Avith 
power  to  sell  and  convey  the  real  estate  for  their  benefit,  but 
with  no  power  to  convey  for  any  other  object  or  purpose,  so  long 
as  the  trust  created  remained  undischarged.  The  statute  de- 
clares that  every  conveyance  made  in  contravention  of  the  trust 
expressed  in  the  instrument  creating  the  estate  shall  be  "abso- 
lutely void."     (1  R.  S.  730,  §  65.) 

The  reconveyance,  by  the  trustees,  of  the  real  estate  em- 
braced in  the  assignment,  without  paying  and  satisfying  the 
debts  for  the  payment  of  which  the  estate  was  created,  was 
clearly  in  contravention  of  the  trust.  It  was  directly  in  oppo- 
sition to  the  trust,  and  calculated,  if  not  intended,  to  obstruct 
and  defeat  it,  and  falls  clearly  within  the  plain  language  and 
meaning  of  the  acts.  The  conveyance  must  therefore  be  ad- 
judged absolutely  void,  at  least  as  to  all  creditors  whose  debts 
were  provided  for  by  the  instrument  creating  the  estate,  an(l 
which  remained  unpaid  at  the  date  of  such  conveyance.  By 
the  assignment  Masten,  the  assignee,  divested  himself  of  the 
entire  "state  in  the  lands  in  question,  retaining  nothing  except 


MONROE— SEPTEMBER,  1855.  405 

Briggs  V.  Palmer. 

tlie  equitable  and  incidental  right  to  discharge  the  trusts  by 
payment  of  the  debts  before  sale,  and  thus  entitle  himself  to  a 
reconveyance  of  the  whole  estate,  or  to  claim  a  reconveyance  of 
Ihe  residue  remaining  unsold  after  the  debts  were  discharged, 
or  payment  of  the  residue  of  the  proceeds  of  the  sales.  The 
conveyance  from  the  trustees  being  void,  Masten  had  at  the 
date  of  the  defendant's  mortcjanfe,  no  title  or  interest  in  the 
land,  which  he  could  convey  or  encumber  by  a  mortgage,  at 
least  against  creditors  interested  in  the  trust  estate.  It  may  be 
that  such  a  conveyance  would  be  good  against  all  persons  ex- 
cept creditors.  And  I  am  inclined  to  the  opinion  that  it  would 
be,  notwithstanding  the  peremptory  language  of  the  statute 
The  statute  declares  that  all  conveyances  of  lands  by  a  person 
not  in  possession,  which  are  at  the  time  held  adversely,  shall  be 
void,  and  yet  courts  have  uniformly  held  that  such  a  convey- 
ance was  good  as  between  the  parties,  and  conveyed  the  title 
of  the  grantor,  as  against  all  the  world  except  the  adverse  holder. 
(^Livingston  v.  Proseus,  2  Hill,  526.  Kenada  v.  Gardner, 
3  Barb.  S.  C.  R.  589.)  So  here,  I  apprehend,  had  no  creditor 
interposed  his  clainjis,  the  title  of  Masten  thus  derived  from  the 
assignees,  would  have  been  good  as  against  all  persons.  But 
this  does  not,  that  I  perceive,  affect  the  question  here,  in  a  con- 
test between  a  person  claiming  title  under  and  in  consonance 
with  the  trusts  created  by  the  assignment,  and  an  incumbrancer 
of  the  title  attempted  to  be  conveyed  in  contravention  of  such 
trusts.  The  plaintiff's  title  must  be  adjudged  to  stand  upon 
the  same  footing  with  one  derived  directly  from  the  assignees 
by  a  sale  and  conveyance  in  pursuance  of  the  trust.  The  trust 
was  in  nowise  affected  by  the  reconveyance,  and  it  was  the 
duty  of  a  court  of  equity,  when  its  aid  was  invoked,  to  compel 
its  execution. 

The  validity  of  the  mortgage  is  in  no  way  helped,  by  the 
fact  that  the  mortgagee  at  the  time  of  taking  it  had  no  actual 
notice  of  the  claim  of  the  Dorman  estate,  or  of  the  assignment 
and  reconveyance.  The  assignment  and  reconveyance  Avere 
bi)ih  matters  of  record,  which  the  statute  makes  sufficient 
notir«o  to  all  subsequent  purchasers   and  incumbrancers.     Hay 


406  CASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Palmer. 

ing  constructive  notice  of  the  assignment  they  were  put  upon 
inqniry  as  to  all  claims  and  rights  under  it.  Nor  is  the  recital 
of  the  assignees,  in  the  reconveyance,  that  the  debts  were  all 
paid,  of  any  avail.  The  trustees  could  not  by  a  recital  in  a 
deed  of  that  character,  contrary  to  the  fact,  affect  the  interests 
of  ccstnis  que  trust.  They  were  put  upon  inquiry  as  to  the 
facts,  and  it  is  no  answer  for  them  to  say  that  they  did  not 
ascertain  the  true  state  of  the  case.  The  law  imputes  to  them 
full  knowledge  of  all  the  facts,  and  their  mortgage  anust  stand 
or  fall  by  the  state  of  facts  actually  existing  at  the  time.  The 
trustees  have  not  the  power  to  deprive  the  cestuis  que  trust  of 
the  protection  of  the  statute  by  an  erroneous  statement.  The 
risk  was  with  the  mortgagees  as  it  is  with  all  purchasers  under 
a  power. 

I  am  not  aware  of  any  principle  which  would  allow  the  mort- 
gagees, or  their  assigns,  to  redeem  the  real  estate  by  pay- 
ment of  the  amount  at  which  it  was  bid  off  at  the  sale  under 
the  decree,  or.  in  short,  to  redeem  at  all.  The  mortgagor  hav- 
ing no  title  could  create  no  incumbrance  upon  the  estate.  The 
mortgage  could  at  most  only  operate  as  an  assignment  or  equit- 
able mortgage  of  Masten's  residuary  interest  after  the  trust 
was  fully  executed.  Under  this  the  defendant  might  probably 
have  paid  the  debt  before  a  sale  and  transfer  of  the  title. 
But  the  title  having  passed  in  pursuance  of  the  trusts  created, 
there  can  be  no  redemption  by  any  one  standing  in  the  position 
of  the  assignor,  or  claiming  under  him, 'subsequent  to  the  cre- 
ation of  the  trust  estate.  Their  claim  must  now  be  upon  the 
residuary  portion  of  the  avails  of  the  sale,  if  any.  I  do  not 
see  how  the  defendant  could  redeem,  even  by  paying  the  whole 
debt.     But  this  he  does  not  propose  to  do. 

I  think  there  was  no  error  either  in  the  rulings  or  in  the  judg- 
ment at  the  special  term,  and  that  the  judgment  should  be 
affirmed. 

fMdNROE  General  Term,  September  3,  1855.  Selden,  T.  R.  Strong  ecA 
Johnson,  Justices.] 


MONROE— SEPTEMBER,  1855.  407 


Murdoch  and  Dall  vs.  Harris  and  others. 

L'>cmSj  placed  upon  the  floor  of  a  woolen  factory  and  fastened  to  such  floor  by 
means  of  screws  in  each  loom,  are  a  permanent  and  essential  part  of  tho 
woolen  factory.  And  in  the  absence  of  any  proof  that  when  they  were  thus 
annexed  to  the  building  it  was  not  intended  they  should  remain  indefinitely  in 
their  position,  to  be  used  as  long  as  they  were  capable  of  use,  it  will  not  be 
presumed  that  the  annexation  was  merely  temporary.  They  are  therefore  to 
be  deemed  _/?3;^Mre5,  £is  between  mortgagor  and  mortgagee. 

A.nd  a  mortgagee  of  the  factory  and  machinery  will  hold  such  looms,  by  virtue 
of  his  mortgage,  in  preference  to  a  creditor  of  the  mortgagor,  who  has  levied 
upon  the  same  under  an  execution  issued  against  the  latter ;  especially  in  a 
case  where  it  appears  that  the  parties  to  the  mortgage  have  treated  the  looms 
as  fixtures,  and  intended  they  should  be  covered  by  the  mortgage. 

THIS  'was  a  motion  by  the  defendants,  GifFord,  Sherman  <fc 
Innis,  for  a  new  trial,  upon  exceptions  taken  by  them  at  the 
circuit,  and  which  exceptions  were  directed  to  be  heard  in  the 
first  instance  at  a  general  terra.  The  action  was  brought  to 
foreclose  a  mortgage  given  by  the  defendants  Harris  &  Water- 
men, on  the  Auburn  Woolen  Mill  property  and  machinery,  to  the 
plaintiffs,  dated  November  8,  1853,  to  secure  the  payment  of 
$20,000  in  one  year,  with  semi-annual  interest.  The  defend- 
ants, Gifford,  Sherman  and  Innis,  recovered  judgments  against 
said  Harris  &  Waterman,  on  the  24th  October,  1854,  amount- 
ing to  $3384.13,  and  executions  were  issued  on  the  same  day, 
and  delivered  to  the  sheriff  of  the  county  of  Cajmga,  Avho  on 
the  8th  day  of  November,  1854,  levied  said  executions  on  twenty- 
6ve  broad  looms  in  said  woolen  mill.  Said  defendants  claimed 
the  right  to  hold  the  looms  for  the  satisfaction  of  their  execu- 
tions. The  judge  before  whom  the  action  was  tried  decided  that 
the  looms  were  fixtures,  and  were  to  be  regarded  as  real  estate, 
and  not  personal  estate :  that  the  facts  set  forth  in  the  answer  of 
the  defendants  did  not  constitute  any  defense  to  the  action; 
and  that  the  plaintiffs  were  entitled  to  judgment  against  the 
defendants. 

John  Porter,  for  the  plaintiffs. 

J.  UnderiDood,  for  the  defendants. 


408        OASES  IN  THE  SFPEEME  COURT. 

Murdock  r.  Harris. 

By  the  Court,  Johnson,  J.  I  shall  not  attempt  to  go  over 
the  numerous  cases  to  be  found  in  the  books  upon  the  vexed 
question  of  what  confers  upon  machinery,  when  put  up  and  at- 
tached to  a  building  for  use,  the  quality,  and  gives  it  the  char- 
acter, of  real  estate.  The  task  would  be  unprofitable  and  well 
nigh  endless.  Upon  the  plain  undisputed  facts  presented  by  the 
pleadings  in  the  case,  I  am  clearly  of  the  opinion  that  no  de- 
fense is  made  out  to  the  cause  of  action  alleged  in  the  complaint. 
The  plaintiffs  are  the  mortgagees  of  the  owners  of  the  woolen 
factory  and  premises,  seeking  to  foreclose  their  mortgage,  on 
account  of  defliult  in  making  payments.  The  mortgage  em- 
braces the  machinery  in  terms,  and  it  is  indisputable  that  the 
parties  to  the  mortgage  have  treated  the  looms  in  question  as 
fixtures,  and  intended  they  should  be  covered  by  the  mortgage. 
The  defendants  who  appear  and  put  in  their  answer,  are  subse- 
quent judgment  ci-editors  of  the  mortgagors,  and  before  the 
commencement  of  this  action  had  caused  execution  to  be  issued 
and  levied  upon  twenty-five  broad  looms,  in  the  factor}^,  which 
are  included  in  the  plaintiffs'  mortgage.  And  they  seek  by  way 
of  defense  to  have  the  plaintiffs  enjoined  and  restrained  from 
selling  the  looms  thus  levied  on,  as  real  estate,  by  virtue  of  their 
mortgage,  and  to  have  preference  and  priority  given  to  their 
execution,  on  the  ground  that  the  said  looms  are  personal  and 
not  real  estate,  the  plaintiffs'  mortgage  not  having  been  filed  or 
indexed  as  a  chattel  mortgage.  The  answer  alleges  that  the 
looms  are  placed  upon  the  floor  of  the  factory  building  and  are 
fastened  to  said  floor  by  means  of  ten  screws  in  each  loom, 
merely  for  the  purpose  of  keeping  the  said  looms  in  their  places 
and  in  a  steady  position,  and  not  otherwise,  during  the  operation 
and  working  of  said  looms.  Such  are  the  conceded  facts  of  the 
case.  It  is  obvious  that  these  looms,  thus  affixed,  had  become 
and  were,  at  the  time  the  mortgage  was  executed,  a  permanent 
and  essential  part  of  the  woolen  factory.  They  were  thus  at- 
tached at  that  time,  and  there  is  nothing  in  the  case  to  show 
that  ^vhen  they  were  thus  annexed  to  the  building  it  was  not 
intended  they  should  remain  indefinitely  in  their  position,  to  be 
used  as  long  as  they  were  capable  of  use.     They  were  part  of 


FKANKLIN— SEPTEMBEK,  1854.  409 

Briggs  V.  Smith. 

the  structure,  essential  to  the  use  for  which  the  whole  was  de- 
signed. And  it  is  not  to  be  presumed  that  the  annexation  was 
merely  temporary.  Permanence  and  steadiness  of  position  were 
indispensable  to  their  usefulness ;  and  to  allege  that  they  were 
thus  atta/^hed  merely  to  keep  them  steady,  proves  nothing,  ex- 
cept that  they  were  secured  so  as  to  become  efficient  and  useful 
portions  of  the  factory.  The  means  by  which  they  were  attached 
is  shown,  and  from  the  nature  and  character  of  the  annexation  I 
think  it  follows  as  matter  of  law,  that  they  were  fixtures,  as  be- 
tween morto;asror  and  mortgagee.  It  does  not  follow  at  all  that 
they  were  not  fixtures,  because  the  screws  could  be  taken  out  and 
the  looms  be  thus  separated  from  the  floor  and  removed  without  es- 
sential injury  to  them  or  to  the  building,  as  is  alleged  to  be  the  fact 
in  the  answer.  It  is  immaterial  whether  the  iron  is  iu-the  form 
of  a  spike  or  nail  or  screw.  The  attachment  Avould  be  just  as 
permanent  with  the  one  as  the  other,  and  the  same  allegation 
might  l)e  made  as  to  detachment  without  essential  injury  in 
either. case.  The  character,  nature  and  object  of  the  annexation, 
taken  in  connection  with  the  thing  annexed  and  the  surround- 
ing circumstances,  must  control.  I  am  therefore  of  opinion  that 
the  decision  of  the  judge  at  special  term  was  correct  and  that  a 
new  trial  should  be  denied. 

[MoNROK  Genf.ral  Term,  September  3,  1855.     Selden,  Johnson  and  T.  /?. 
Strong,  Justices.] 


Briggs  vs.  Smith. 

Mistakes  OT  errors  of  a.rh\tTators,  in  respect  to  the  matters  submitted  to  them, 
cannot  be  inquijed  into,  or  corrected,  in  a  court  of  law.  Parol  evidence  cannot 
bo  recei%X'd,  therefore,  to  show  such  mistakes  or  enors. 

But  ]>arol  evidence  to  show  that  the  arbitrators  exceeded  their  powers  is  admis- 
sible in  a  court  of  law;  and  if  that  fact  is  proved,  it  will  render  the  award  void. 

Thus  where  a  submission  was  general,  of  all  matters  whatever  between  thepar- 
iies ;  Hkf-d  that  evidence  to  show  that  the  arbitrators  took  iuto  cons' deration 

Vol.  XX.  62 


4  1  0  CASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Smith. 

matters  not  submitted  to  them,  viz :  matters  between  one  of  the  parties  a  id  a 
third  person,  was  admissible. 

And  where  that  portion  of  an  award  which  is  void  for  not  being  within  the  sub- 
mission, is  so  connected  with  the  rest  of  the  award  that  it  is  impossible  to  dis- 
tinguish between  the  valid  and  the  invalid  portions,  the  whole  award  is  void. 

Where,  in  an  action  upon  an  award,  the  defendant  offered  to  prove  by  one  of  tlie 
arbitrators,  "  that  the  arbitrators  took  into  consideration  matters  not  submitted 
to  them  ;  also  that  they  included  in  the  award  about  fifteen  perch  of  stone  as 
the  property  of  the  defendant,  and  did  not  include  it  in  the  written  award;" 
Held  that  this  was  not  to  be  construed  as  one  entire  offer  and  therefore  inad- 
missible as  embracing  a  matter  as  to  which  no  evidence  could  be  received,  viz ; 
to  show  the  mistake  ;  but  that  the  proposition  was  to  be  treated  as  constituting 
two  distinct  offers,  one  of  which  was  proper. 

Where  an  objection  to  testimony  is  taken,  on  the  trial,  on  a  specific  ground,  and 
in  such  a  manner  as  to  induce  the  opposite  party  to  believe  that  such  is  the 
sole  ground,  tlie  party  objecting  will  not  be  allowed,  on  appeal,  to  place  his 
objectioH  upon  a  different  ground  and  one  which,  if  it  had  been  urged  at  the 
trial,  might  have  been  obviated. 

Whei'e  there  is  not  enough  ou  the  face  of  an  award  to  show  that  the  arbitrators 
did  not  go  beyond  the  submission,  parol  evidence  may  be  resorted  to.  And 
the  arbitrators,  or  either  of  them,  are  competent  witnesses  to  prove  tliat  matters 
were  included  in  the  award  which  were  not  contained  in  the  submission ;  in  a 
oase  where  no  bad  faith  on  the  part  of  the  arbitrators  is  alleged. 

rpmS  was  an  action  originally  tried  before  a  justice  of  the 
1  peace  of  Saratoga  county.  The  action  was  brought  on  an 
award  of  arbitrators,  which  award  was  in  writing  and  produced 
in  evidence,  by  which  among  other  things,  the  arbitrators  award- 
ed that  the  defendant  should  pay  the  plaintiff  ^35  in  sixty 
days  and  one-half  the  fees  of  the  arbitrators,  the  whole  being 
$15.  The  justice,  on  proof  of  the  award  and  of  the  payment  of 
the  arbitrators'  fees  by  the  plaintiff,  rendered  judgment  in  his 
favor  for  the  amount  of  the  award  and  one-half  the  fees,  amount- 
ing to  $42.16  damages,  and  $2.09  costs.  On  the  trial  the  de- 
fendant offered  to  prove  by  Jacob  Osborn,  one  of  the  arbitrator Sj 
''  that  the  arbitrators  took  into  consideration  matters  not  sub- 
mitted to  them  ;  also  that  they  included  in  the  award  about  15 
perch  of  stone  as  the  property  of  the  defendant,  and  did  not  in- 
clude it  in  the  written  award  ;  and  admitted  with  the  offer  that 
no  bad  faith  on  the  part  of  the  arbitrators  was  imputed.  This 
was  objected  to  by  the  plaintiff,  on  the  ground  "  that  the  evidence 
to  prove  the  offer  is  incompetent ;  that  an  arbitrator  is  incom- 


FEANKLIN-  SEPTEMBER,  1854.  4  j  l 

Briggs  V.  Smith. 

retent  to  impeach  his  award."  The  justice  sustained  the  objec 
tion,  and  the  evidence  was  excluded.  The  defendant  appealed 
to  the  county  court  of  Saratoga  county,  where  the  judgment  was 
affirmed,  and  he  appealed  to  this  court. 

//.  W!  Merrill,  for  the  plaintiff. 

John  Lewis,  for  the  defendant. 

By  the  Court,  C.  L.  Allen,  J.  The  only  question  presented 
in  this  case  is,  whether  the  evidence  offered  by  the  defendant 
should  have  been  received.  The  evidence  offered  was  two-fold 
in  its  aspect,  1.  That  the  arbitrators  took  into  consideration  mat- 
ters not  submitted  to  them ;  and  2d.  That  they  awarded  that 
the  defendant  should  have  as  his  own  property  about  fifteen 
perch  of  stone  on  the  premises  of  the  plaintiff,  which  through 
mistake  was  not  included  in  the  written  award.  It  is  not  seri- 
ously contended  that  the  latter  offer  was  proper.  It  has  been 
repeatedly  held  that  no  evidence  of  any  kind  can  be  given  to 
show  a  mistake  in  the  award,  in  an  action  at  law  upon  it, 
{Efner  v.  Shaw,  2  Wend.  567.  Newland  v.  Douglass,  2  John. 
Ch.  62.  9 /o/i//.  212.  Doke  v.  James,  4  Corns.  567,  574. 
Perkins  v.  Witig,  10  John.  143.  12  id.  311.  Emmet  v. 
Hoyt,  17  Wend.  410.  Fidler  v.  Cooper,  19  id.  286,  287. 
Dater  v.   Wellington,  1  Hill,  319.) 

The  other  part  of  the  offer  presents  a  more  serious  question. 
In  the  case  of  Butler  v.  The  Mayor  Sfc.  of  New  York,  (7  Hill, 
329,)  which  was  a  case  in  the  court  of  errors,  it  was  held  that 
oral  evidence  may  be  given  to  invalidate  an  award  by  showing 
that  the  arbitrators  exceeded  their  powers,  though  the  submis- 
sion and  award  be  in  writing  and  under  seal.  It  was  remarked 
that  if  the  submission  had  been  pursuant  to  the  statute  respect- 
ing arbitrations  there  is  no  doubt  a  court  of  law  would  have  the 
power  of  vacating  the  award  summarily  on  motion  ;  but  that 
such  a  mode  of  relief  only  obtained  where  by  the  agreement  of 
the  parties  judgment  might  be  rendered  in  a  court  of  law  upon 
the  award  made  pursuant  to  the  submission ;  but  that  in  other 


3  1 2  CA<SES  IN  THE  SUPREME  COURT. 

Biiggs  V.  Smith. 

cases,  that  relief  could  be  given  in  a  court  of  law  as  well  as  m 
equity.  Tliat  the  evidence  oifered  did  not  propose  to  vmy  the 
written  terms  of  the  award,  but  to  show  that  the  arbitrators 
did  award  as  to  matters  not  submitted  to  them  ;  and  it  was  said 
to  be  analogous  to  the  case  of  a  special  power  of  attorney,  where 
oral  evidence  may  be  received  to  show  that  the  act  done  was  not 
within  the  scope  of  the  attorney's  authority.  That  the  atvard 
of  arbitrators  is  conclusive  and  absolute  except  in  the  specified 
case  of  misconduct,  or  where  they  exceed  their  poioer.  "  It 
would  seem,"  say  the  court,  "like  a  denial  of  justice,  where  arbi- 
trators have  transcended  their  powers,  that  the  party  shall  be 
precluded  from  giving. any  proof,  and  be  bound  to  submit,  merely 
because  the  arbitrators  have  not  made  such  a  defect  of  authority 
apparent  upon  the  face  of  the  award." 

In  another  report  of  the  same  case,  (1  Barb.  S.  C.  Rep.  325.) 
this  docti'ine  is  again  repeated  and  affirmed,  and  the  court  say 
that  such  an. award  is  a  nullity  and  may  be  so  declared  by  any 
court  before  which  an  attempt  is  made  to  enforce  it. 

In  the  Matter  of  Williatns,  (4  Denio,  194.)  it  was  decided 
that  on  a  motion  to  vacate  an  award  under  the  statute,  (2  K.  iS. 
542,  §  10,)  the  court  is  not  confined  to  an  examination  of  the 
submission  and  the  award,  but  may  receive  affidavits,  as  to  what 
took  place  at  the  hearing;  to  shoia  that  the  arbitrators  exceeded 
tlieir  jjowers  ;  and  Bronson,  Ch.  J.,  in  delivering  the  opinion 
of  the  court,  remarks  that  in  actions  involving  the  validity  of  an 
award,  "  the  rule  in  this  state  was  formerly  understood  to  be 
that  you  could  not  impeach  the  award  by  going  behind  it,  and 
showing  that  the  arbitrators  exceeded  their  authority,  or  omit- 
ted to  decide  on  all  the  matters  submitted,  and  that  this  rule  was 
followed  by  the  supreme  court  in  Butler  v.  The  Mayor  <^c.  of 
New  York.  But  that  on  the  reversal  of  that  judgment  by  the 
court  of  errors,  (7  Hill,  329,)  the  rule  was  settled  the  other  way, 
and  that  now  the  parties  may  go  behind  the  award,  and  if  that 
can  be  done  in  an  action  it  is  quite  clear  that  it  may  also  be 
done  on  a  motion  to  vacate  the  award ;  and  the  award  was  va- 
cated because  the  arbitrators  had  exceeded  their  powers." 

As  early  as  1840,  in  the  case  of  Elmendorf  v.  Harris,  (23 


FEA.NKLIN -SEPTEMBER,  1854.  413 

Briggs  V.  Smith. 

Wend.  628,)  the  court  of  errors  decided  that  an  award  made 
without  notice  of  hearing  to  the  losing  party  is  void,  and  that 
such  a  defense  could  be  set  up  in  an  action  at  law  upon  the 
bond,  without  the  party's  being  compelled  to  resort  to  a  court  of 
equity.  The  want  of  notice  was  in  this  case  proved  by  parol, 
it  not  appearing  upon  the  face  of  the  award.  The  point  was 
passed  upon  and  decided,  that  parol  evidence  may  be  resorted 
to  in  an  action  on  the  bond,  to  show  the  want  of  notice,  as  the 
supreme  court  whose  judgment  was  reversed  placed  their  decis- 
ion upon  the  ground  that  if  the  person  dissatisfied  with  the 
award  wishes  to  amend  it  for  any  matters  dehors  the  award,  he 
cannot  do  it  in  a  court  of  law.  {S.  C.  5  Wendell,  516,520; 
opinion  of  Ch.  J.  Savage.  And  see  6  Cowen,  103  ;  8  Pet.  1T8.) 
It  has  thus  been  the  law,  in  this  state  at  all  events,  since  the 
decision  of  Butler  v.  Mayor  (S^c.  of  New  York,  (7  Hill,  329,) 
that  parol  evidence  to  show  that  the  arbitrators  exceeded  their 
powers  is  admissible  in  a  court  of  law,  and  that  if  proved  it 
renders  the  award  void.  It  has  not  been  doubted,  unless  in 
the  recent  case  in  the  court  of  appeals  of  Doke  v.  Jamee, 
(4  Comst.  567,  576.)  In  that  case  the  arbitrators  made  two 
awards  in  writing,  one  dated  25th  of  February,  1848,  in  which 
they  directed  their  own  costs  and  expenses,  amounting  to  $63, 
to  be  paid  by  the  plaintiff"  Doke.  In  the  other,  under  date  of 
6th  March  following,  they  stated  their  expenses  at  $63,  but  did 
not  direct  that  Doke  should  pay  them.  The  plaintiff"'s  counsel 
oflFered  to  prove  by  one  of  the  arbitrators  that  the  award  dated 
25th  March,  1848,  did  not,  in  fact,  contain  the  decision  of  the 
arbitrators  ;  that  it  was  signed  by  them  without  understanding 
its  meaning  and  eff"ect,  and  that  they  had  been  induced  to  sign  it 
through  false  representations  ;  and  that  on  ascertaining  that 
they  had  made  a  mistake  the  arbitrators  again  assembled  and 
jnade  the  second  awai-d.  This  evidence  was  objected  to,  both 
on  the  ground  of  the  incompetency  of  the  evidence,  and  of  the 
inability  of  the  arbitrators  to  impeach  their  own  award ;  but 
it  was  admitted  by  the  court  below,  and  the  defendant  ex- 
cepied.  The  case  shows  that  the  first  award,  after  objection  on 
the  part  of  one  or  two  of  the  arbitrators  against  the  clause  re- 


4  1 4  CASES  IN  THE  SUPREME  COUPwT. 


Briggs  V.  Smith. 


quiring  Doke  to  pay  their  fees,  was  finally  signed  and  sealed  hy 
all  of  them  and  delivered  to  the  plaintiflf.  The  award  of  2d 
March  was  only  signed  by  tAvo  of  the  arbitrators.  The  court 
remark  that  the  award  of  25th  February  upon  the  matters  sub- 
mitted was  conclusive  between  the  parties  until  set  aside,  and 
no  parol  testimony,  not  even  of  the  arbitrators,  was  admissible 
to  contradict  or  impeach  it.  They  decided  that  the  arbitrators 
had  exhausted  their  powers  by  the  first  award,  and  could  not 
make  another  unless  by  consent  of  parties.  I  do  not  consider 
this  decision  as  overriding  or  attempting  to  override  that  of  the 
court  of  errors  in  Butler  v.  The  Mayor  ^c.  of  New  York. 
That  case  is  not  alluded  to  by  Justice  Mullett  in  his  opinion, 
and  he  confines  his  remarks  to  the  matters  suhm,itted  ;  that  is, 
not  that  the  arbitrators  exceeded  their  powers,  but  that  they  had 
made  and  published  one  award,  on  the  n,atters  submitted,  and 
could  not  be  allowed  to  alter  or  explain  it  })y  attempting  to  make 
another,  or  by  showing  that  they  had  awarded  more  than  they  in- 
tended, or  had  made  a  mistake.  The  cases  cited  by  Justice  Mul- 
Igtt  in  his  opinion,  most  of  them,  were  cited  in  the  case  of  But- 
ler V.  The  Mayor  ^'C.  of  New  York,  and  in  the  Matter  oj 
Willia??is,  but  were  virtually  overruled,  by  the  court  of  errors,  in 
the  former  case,  and  by  the  supreme  court  in  deciding  the 
latter  case,  so  far  as  the  point  under  consideration  is  concerned. 
The  attention  of  the  court  of  appeals,  or  of  the  learned  judge 
who  delivered  the  opinion,  does  not  seem  to  have  been  directed 
to  the  case  of  Butler,  and  I  am  confident  from  a  review  of  the 
facts,  in  the  case  in  4  Comst.  and  of  the  cases  relied  upon  in 
support  of  the  decision,  that  it  was  not  the  intention  of  the 
court  to  reverse  or  overrule  the  decision  of  the  court  of  errors. 
The  case  of  Emmet  \.  Hoyt.  (17  Weiid.  410.)  decides  no  more 
than  that  mistakes  or  errors  in  law  or  fact  upon  the  matters 
submitted  cannot  be  reviewed  in  a  court  of  law,  but  virtually 
admitg  that  where  there  is  a  want  of  jurisdiction  on  the  part 
of  the  arbitrators,  (and  excess  of  power  is  Avant  of  jurisdiction,} 
then  the  award  is  not  final.  That  case  merely  involved  a  con- 
sideration of  the  merits,  and  all  the  matters   sought  to   be  re 


FRANKLIN— SEPTEMBER,  1854.  415 


Briggs  V.  Smith. 


viewed  \{Qxe  fairly  within  the  scope  of  the  siihmii^sion,  and  the 
court  said  they  could  not  interfere. 

So  in  the  case  of  Fidler  v.  Cooper.  (19  Wend.  285,)  the  court 
say,  "An  award,  properly  made  in  pursuance  of  the  authority  con- 
ferred on  the  arbitrators,  is  conclusive  as  to  all  matters  to  which 
the  submission  extends,  whether  any  particular  matter  included 
in  the  submission  was  laid  before  the  arbitrators  or  not,'*  and  they 
cite  Wheeler  v.  Van  Houten,  (12  John.  311.)  which  case  is  that  on 
&  submission  to  arbitration  of  all  matters  indifference  between  the 
parties,  the  award  is  conclusive  on  the  parties  as  to  all  causes  of  ac- 
tion subsisting  between  them  previously  to  the  submission  ;  that 
is,  the  award  is  final  as  to  all  matters  within  the  submission. 
So  in  Dater  v.  Wellington,  (1  Hill,  31 9,)  the  court  expressly  said 
that  whether  the  arbitrators  erred  on  the  'merits,  as  a  court  of 
law  they  had  no  right  to  inquire,  but  if  the  questions  had  related 
to  the  power  or  jurisdiction  of  the  arbitrators,  they  could  inquire. 

All  these  cases  seem  to  admit  the  doctrine,  which  was  set  at 
rest  in  Butler's  case,  and  decide  just  as  clearly  that  mistakes 
or  errors  in  the  arbitrators  as  to  the  matters  submitted  to  them, 
such  as  was  attempted  in  the  latter  part  of  the  defendant's  offer  in 
this  case,  cannot  be  inquired  into  or  corrected  in  a  court  of  law. 
[t  is  remarked  by  the  court  in  Doke  v.  James,  that  if  the  arbi- 
trators did  award  as  to  matters  not  submitted  to  them,  the 
award  would  only  be  void  pro  tanto,  and  would  stand  good  as 
to  the  matters  confessedly  submitted.  The  learned  justice 
cites,  in  support  of  that  part  of  his  opinion,  Martin  v.  Williatns, 
(13  John.  264.)  That  case  decides  that  where  part  of  an  award 
which  is  void  is  not  so  connected  with  the  rest  as  to  affect  the 
justice  of  the  case,  the  award  is  void  only  pro  tanto;  but 
where  it  is  so  connected  it  is  Void  altogether.  The  case  of 
Jackson  v.  Ambler,  (14  John.  96,)  decides  nothing  farther,  but 
affirms  the  doctrine  that  if  it  had  appeared  that  the  arbitrators 
had  exceeded  their  powers,  the  court  would  have  been  bound  to 
deny  to  their  decision  any  valid  effect.  Such  is  the  conclusion, 
and  no  more,  in  McBride  v.  Hagan,  (1  Wend.  326,  360.)  The 
submission  in  this  case,  which  was  in  writing,  was  a  general 
one  of  all  matters  whatever  between  the  parties.     The  offer 


4  1  6  CASF.S  IX  THE  SUPREME  COURT. 

Brigys  V.  Smith. 

was  to  take  into  consideration  matters  not  submitted  to  th<;  ar- 
bitrators ;  and  the  parties  both  say  in  their  points,  that  they  took 
into  consideration  matters  in  difference  between  Reuben  Perry 
and  the  defendant.  It  is  impossible  to  determine  from  the  award 
how  much  the  arbitrators  allowed  was  due  from  the  defendant 
to  the  plaintiff,  and  how  much  was  allowed  as  to  the  matter 
in  which  Reuben  Perry  was  interested.  It  is  impossible  to 
distinguish  so  as  not  to  affect  the  justice  of  the  case  ;  and 
within  the  decisions  the  award,  if  the  facts  offered  to  be  proved 
were  true,  is  wholly  void.  I  think,  on  the  whole,  that  the 
evidence,  if  it  was  properly  offered,  should  have  been  received. 
But  the  plaintiff  objects  that  the  offer  as  a  ivhole  was  improper ; 
that  no  evidence  could  be  received  to  show  the  mistake,  and  as 
both  matters  were  included  in  one  offer,  the  evidence  applied  to 
both  matters  equally,  and  should  have  been  received  as  a  whole, 
and  rejected  as  a  whole.  It  has  been  conclusively  shown,  I 
think,  that  the  evidence  as  to  the  mistake  was  improper  and 
was  rightly  rejected.  I  doubt,  however,  whether  it  can  be  said 
that  both  matters  were  included  in  one  offer.  It  is  true,  they  were 
made  in  consecutive  order,  but  it  does  not  follow  from  that,  that 
they  were  both  one  offer.  The  offer  was  in  these  words,  "  De- 
fendant offered  to  prove  by  Jacob  Osborn,  one  of  the  arbitrators, 
that  the  arbitrators  took  into  consideration  matters  not  submit- 
ted to  them  ;  (semicolon)  also  that  they  included  in  the  award 
about  15  perch  of  stone,"  &c.  through  mistake.  Now  there  is  a 
pause  between  the  two  matters,  making  it  pretty  evident  that 
these  were  intended  to  be  two  distinct  offers.  The  defendant 
first  offered  to  prove,  1,  that  the  arbitrators  exceeded  their 
powers  ;  also,  2,  that  they  made  a  mistake  in  their  award. 
Like  the  two  counts  in  a  complaint,  where  it  has  been  held  that 
in  commencing  a  second  count,  it  is  sufficient  to  use  the  word 
also.  It  is  very  easy  to  distinguish  between  the  two  offers,  and  to 
pass  upon  each,  and  the  offer,  especially  in  a  justice's  court,  where 
pleadings  and  offers  are  to  be  construed  liberally,  was  sufficient 
unless  specifically  objected  to.  It  is  true  it  would  probably  have 
been  more  satisfactory  and  at  least  more  decisive  if  the  justice 
had  been  requested  to  decide  and  liad  decided,  on  each  offer  dis- 


FRANKLIN"— SEPTEMBER,  1854.  4]7 

Briggs  V.  Smith. 

tlnctly  ;  but  I  apprehend  they  were  so  stated  as  to  make  them 
two  distinct  offers.  The  offer  embraced  two  distinct  propositions, 
each  of  which  was  easily  distinguishable,  and  each  was  in  such 
plain,  unequivocal  terms,  as  to  leave  no  room  for  doubt  as  to 
what  was  intended.  {Daniels  v.  Patterson,  3  Comst.  47,  52.) 
They  did  "fit  the  case"  nearly  enough,  and  as  far  as  intended  in 
1  Peters,  328,  3S7.  The  counsel  for  the  plaintiff,  while  he  in- 
sists that  the  matters  were  all  embraced  in  one  offer,  relies 
upon  his  objection  to  their  admission  on  two  grounds  ;  first,  that 
the  evidence  to  prove  the  offer  was  incompetent,  and  second,  that 
an  arbitrator  is  incompetent  to  impeach  his  own  award,  and  yet 
his  objection  is  obnoxious  to  the  very  exception  which  he  takes  to 
the  defendant's  offer.  It  is  in  these  words  :  "  Objected  by  plain- 
tiff that  the  evidence  to  prove  the  offer  is  incompetent ;  that  an 
arbitrator  is  incompetent  to  impeach  his  own  award,"  and  the 
court  returns  '•'  objection  sustained."  According  to  his  mode  of 
arguing,  the  objections  would  all  be  included  in  the  one  sentence, 
and  then  it  would  stand  based  upon  the  specific  ground  that  an 
arbitrator  was  incompetent  to  impeach  his  own  award.  It 
might  be  urged  with  the  same  force,  that  he  was  bound  to  make 
his  objection  more  specific,  if  he  intended  to  rely  on  any  other 
ground  than  the  one  last  stated.  And  it  is  more  than  proba- 
ble from  the  phraseology  in  the  return,  that  the  justice  reject- 
ed the  evilence  on  that  ground  alone.  None  other  is  stated  or 
pretended,  and  the  fair  inference  is,  no  other  was  interposed  or 
passed  upon.  If  the  objection  had  been  put  upon  the  ground 
that  the  offer  embraced  too  much,  the  defendant  would  havo 
had  an  opportunity  to  make  them  more  separate  and  dis- 
tinct. But  the  defendant  b}^  his  stating  in  the  latter  part  of 
his  objection  the  only  ground,  probably  misled  the  plaintiff,  and 
should  not  now  be  permitted  to  change  his  ground  and  for  the 
first  time  start  a  new  one.  The  objection  was  not  to  the  evidence, 
but  to  the  means  of  proving  it.  In  the  case  of  Hargcr  v.  Ed- 
monds, (4  Barb.  256.)  the  offer  was  to  show  that  the  water- 
works were  not  put  in  repair  after  the  commencement  of  the 
suit  and  were  not  in  repair  after  the  1st  January,  1847.  This 
was  one  connected  proposition  to  prove  two  connected  facts,  on« 
YoL.  XX.  58 


4  ]  S  CASES  IX  THE  SUPREME  CO  fJRT. 

Biiggs  V.  Smith. 

of  which  was  inadmissible.  In  the  case  Ave  are  now  consider- 
ing they  were  separate  facts  not  connected  with  each  other,  and 
separately  stated.  In  Beebee  v.  Bull,  (12  Wend.  504.)  cited 
by  the  learned  judge  in  the  court  below,  the  supreme  court  put 
their  decision  upon  the  very  ground  that  the  objection  was  too 
broad.  "  A  part  of  the  evidence''  say  the  court,  "  was  dearly 
competent.,  hut  the  objection  went  to  the  whole,  and  was  prop- 
erly overruled."  I  think  that  case  decides  the  present,  so  far 
as  the  point  now  considering  is  concerned,  but  in  a  different  way 
from  that  supposed  by  the  court  below.  Here,  the  party  took 
his  objection  in  such  a  manner  as  to  place  it  entirely  upon  the 
ground  that  the  witness  could  not  be  sworn  to  impeach  his  own 
award,  or  at  all  events  so  as  to  induce  the  opposite  party  to 
believe,  as  he  evidently  did,  that  such  was  his  sole  ground. 
lie  now  seeks  to  change  his  ground,  and  defeat  his  adversary 
upon  an  objection  which,  if  it  had  been  taken  at  a  proper  time, 
on  the  trial  would  have  been  obviated.  This,  in  my  judgment, 
he  is  not  at  liberty  to  do,  and  so  are  many  of  the  cases.  ( Bank 
of  Salina  v.  Henry,  2  Denio,  155.  8  How.  151.)  The  last 
case  decided  on  this  subject,  and  which  is,  I  think,  directly  in 
point,  is  that  of  Newton  v.  Harris,  (2  Seld.  345.)  The  court 
say,  where  an  objection  to  testimony  on  a  specific  ground 
is  made  at  the  trial,  no  other  ground  of  objection  which  could 
have  been  obviated,  will  be  listened  to  on  appeal.  Had  the 
objection  been  put  originally  on  the  ground  urged  on  the  ap- 
peal, the  phraseology  of  the  defendant's  offer  might  per- 
haps have  been  modified.  Even  if  the  objection  is  vague  or 
doubtful,  it  is  too  broad  to  be  of  any  avail  in  the  appellate 
court.  {Id.  357.)  Indeed  this  principle  is  too  familiar  with  all 
to  need  further  illustration  or  authority. 

The  only  remaining  question  is  whether  the  arbitrator  was  a 
competent  witness  to  prove  that  matters  were  included  in  the 
award  not  contained  in  the  submission.  Arbitrators,  (like  jurors 
as  to  their  verdict,)  are  not  to  be  permitted  to  impeach  their  award. 
And  the  chancellor  said  in  Campbell  v.  Western,  (8  Paige,  126 
137,)  that  an  arbitrator  who  has  signed  an  award  cannot  be  al- 
lowed to  contradict  his  solemn  act,  and  to  &aj  that   he  did  not 


FKA"N  KLIN— SEPTEMBER,  1854.  4|9 

Matter  of  the  New  York  Central  Rail  Road  Company. 

conour  in  it,  any  more  than  a  juror  ^vho  has  concurred  in  a  general 
verdict  would  be  permitted  to  swear  he  was  not  convinced  it 
was  right.  In  Butler  v.  The  Mayor  <^c.  of  New  York, 
(1  Barb.  S.  C.  R.  325,  334,)  before  cited,  the  court  remarked 
that  where  there  was  not  enough,  on  the  face  of  the  award,  to 
show  that  it  did  not  go  beyond  the  submission,  parol  evidence 
might  be  resorted  to,  and  that  the  arbitrators  or  either  of  them 
were  competent  witnesses  to  prove  that  fact ;  unless  mala  fides 
should  .be  alleged.  Here  the  defendant  expressly  stated 
when  the  offer  was  made,  that  no  bad  faith  on  the  part  of  the 
arbitrators  was  imputed.  In  such  cases  the  evidence  of  arbi- 
trators has  often  been  admitted  to  show  that  they  did  or  did 
not  take  into  consideration  any  particular  subject  matter. 
And  in  the  Matter  of  Williams,  (4  Denio,  196,)  the  affidavits 
of  the  arbitrators  Avere  allowed,  to  show  that  the  arbitrators 
exceeded  their  authority.  These  authorities  seem  to  settle  the 
question  in  favor  of  the  competency  of  the  witness. 

The  judgment  of  the  county  court  and  of  the  justice  should 
be  reversed. 

[Franklin  General  Term,  September  4,  1854.     Hand,  Cady,  C.  L.  Alien 
and  James,  Justices.] 


In  the  matter  of  the  petition  of  the  New  York  Central  Rail 
Road  Company. 

The  existence  of  a  mortgage  which  is  a  lien  upon  land  taken  and  used  by  a  rail 
road  company  for  the  purpose  of  constructing  and  operating  its  road,  is  one  of 
the  defects  in  the  title  to  such  land,  contemplated  in  the  21st  section  of  the 
general  rail  road  act  of  1850,  so  as  to  authorize  such  company  to  proceed  anew 
to  acquire  a  valid  title,  in  the  same  manner  as  if  no  appraisal  had  been  previ- 
ously made,  nor  any  attempt  to  procure  the  title  by  agreement  and  purchase 

The  compary  is  not  obliged  to  wait  until  the  mortgaged  premises  are  sold  undei 
a  decree  of  foreclosure  ;  but  on  discovering  the  existence  of  the  incumbrance 
they  may  proceed  immediately,  and  on  complying  with  all  the  provisions  of 
the  act,  may  have  the  lien  extinguished,  a.s  to  the  land  occupied  by  them 


420  CASES  m  THE  SUPREME  COUPwT. 


1 


Matter  of  the  New  York  Central  Rail  Road  Company. 

"^HIS  was  an  application  for  the  appointment  of  commissioners 
X  to  ascertain  and  appraise  the  compensation  to  be  paid  to  the 
owners  or  persons  interested  in  certain  real  estate  which  had 
been  taken  for  the  use  of  the  Schenectady  and  Troy  Rail  Road 
Company  before  its  consolidation  with  the  New  York  Central 
Rail  Road  Company.  The  petition  set  forth  the  act  of  incorpo- 
ration of  the  former  company,  and  alleged  that  they  did,  pursuant 
to  said  act,  construct  their  railway.  That  the  lands  mentioned 
in  schedule  A,  annexed  to  the  petition,  were  necessary  for,  and 
required  by,  the  Schenectady  and  Troy  Rail  Road  Company  for 
the  purposes  of  its  incorporation,  and  that  on  the  7th  day  of 
May,  1841,  John  Mallany  was  in  possession  of  the  land  in  said 
schedule  described  as  parcel  No,  1,  claiming  to  own  the  same, 
clear  and  free  from  all  incumbrances  ;  and  that,  believing  said 
claim  to  be  well  founded,  the  company  paid  Mallany  $500 
therefor,  being  the  full  value,  and  took  from  him  a  warranty 
deed  in  fee  for  said  parcel,  on  that  day.  That  on  the  17th  of 
May,  1841,  John  Whittick  was  in  possession  of  the  land  de- 
scribed in  the  schedule  as  parcel  No.  2,  claiming  to  own  the 
same  in  fee  ;  and  that  believing  said  claim  to  be  just,  the  com- 
pany, on  that  day,  paid  him  $410  therefor,  being  the  full  value, 
and  took  a  warranty,  deed  from  him.  And  that  on  the  29th  day 
of  April,  1841,  Peter  D.  Van  Vranken  was  in  possession  of  the 
land  described  in  the  schedule  as  parcel  No.  3,  claiming  to  own 
the  same  in  fee,  clear  of  incumbrance ;  and  that  the  company, 
believing  his  claim  to  be  well  founded,  paid  him  therefor  $85.75, 
the  full  value,  and  received  a  warranty  deed  from  him  in  fee.  for 
said  premises.  That  in  the  spring  of  the  year  1841.  the  com- 
pany entered  into  possession  of  said  several  parcels,  under  said 
deeds,  as  their  own  property,  and  constructed  their  road  thereon, 
at  great  expense  ;  and  that  said  lands  had  ever  since  said  spring 
of  1841  been  and  still  were  used  under  said  deeds  for  rail  road 
purposes.  That  the  length  of  said  rail  road  was  21  miles  ;  of 
which  a  map  and  survey  was  made  and  filed  in  January,  1840. 
That  on  the  28th  of  January,  1841,  the  road  was  located  and 
the  location  in  writing  was  filed  as  required  by  law.  That  the 
capital  stock  of  the  company  was  $650,000,  which  was  all  su') 


FRANKLIN— SEPTEMBER,  1854.  421 

Matter  of  the  New  York  Central  Rail  Road  Company,      , 

scribed  and  paid  in  in  good  faith.  Tliat  immediately  after  the 
purchases  aforesaid  the  rail  road  was  constructed  from  Schenec- 
tady to  the  west  bank  of  the  Hudson  river,  by  said  company, 
and  had  ever  since  been  and  still  was  used  through  its  entire 
extent,  for  rail  road  purposes.  That  it  was  so  used  by  said 
Schenectady  and  Troy  Rail  Road  Company  until  its  consolida- 
tion with  the  New  York  Central  Rail  Road  Company,  pursuant 
to  the  act  of  April  2,  1853,  on  the  7th  day  of  July,  1853,  since 
which  time  the  latter  company  had  possessed  and  owned  all  the 
real  and  personal  property,  and  exercised  all  the  rights,  priv- 
ileges and  franchises  which  before  then  belonged  to  the  said 
Schenectady  and  Troy  Rail  Road  Company.  That  in  the  year 
1846,  one  Charles  A.  Peck,  now  of  the  city  of  New  York,  as  ad- 
ministrator with  the  will  annexed  of  Thomas  Tom  deceased,  filed 
his  bill  of  complaint  in  the  then  court  of  chancery  of  the  state 
of  New  York,  against  the  said  Mallany,  Whittick  and  Van  Vran- 
ken,  to  foreclose  a  mortgage  covering  the  lands  mentioned  and 
described  in  said  schedule  A,  and  other  lands,  which  mortgage 
was  made  by  Elias  Kane,  late  of  the  city  of  Albany,  deceased, 
and  Deborah  his  wife,  to  Thomas  Bloodgood,  acting  executor  of 
Thomas  Tom,  deceased,  on  the  1st  day  of  May,  1817.  That  said 
Schenectady  and  Troy  Rail  Road  Company  and  others,  believing 
that  said  mortgage  had  been  satisfied)  interposed  defenses 
against  the  same  as  they  were  advised  were  proper  ;  and  that 
said  action  to  foreclose  was  transferred  from  court  to  court  until 
it  was  brought  into  the  court  of  appeals  and  there  argued,  and 
which  court  decided  the  same  in  December,  1853,  and  not  only 
decided  that  said  mortgage  was  a  valid  lien  and  incumbrance 
upon  the  lands  mentioned  and  described  in  said  schedule  A,  and 
in  part  unsatisfied,  but  in  effect  that  the  heirs  at  law  of  the  said 
Elias  Kane,  deceased,  had  still  an  interest  in  said  premises,  and 
that  the  title  of  the  Schenectady  and  Troy  Rail  Road  Company 
and  that  of  the  petitioners  was  defective  ;  that  they  had  there- 
fore failed  to  obtain  a  perfect  title  to  said  lands  mentioned  in 
said  schedule,  and  that  they  were  required  by  the  petitioners 
for  the  purpose  of  constructing  and  operating  their  road;  and 
that  they  had  not  been  able  to  acquire  a  perfect  title  to  the  said 


422  CASES  IN  THE  SUPREME  COURT. 

Matter  of  the  New  York  Central  Rail  Road  Company. 

lands,  for  the  causes  above  set  forth.  That  Charles  A.  Peck 
administrator,  Thomas  T.  Bloodgood,  executor,  and  various  other 
persons  and  parties  named  in  the  petition,  had  or  claimed  to 
have,  as  the  petitioners  were  informed  and  believed,  some  in- 
terest in  the  said  lands,  as  owners  or  incumbrancers  or  otherwise. 
They  therefore  prayed  that  commissioners  might  be  appointed, 
and  that  they  might  be  permitted  to  continue  in  possession  in 
the  mean  time,  and  that  all  actions  and  proceedings  against 
them  might  be  stayed.  ' 

Copies  of  the  petition  and  notice  were  served  upon  all  the 
parties  named  in  the  petition.  Charles  A.  Peck  appeared  to 
oppose  the  motion,  and  his  counsel  read  the  affidavits  of  Malla- 
ny,  Van  Yranken  and  Sarah  Whittick,  and  the  answer  of  the 
Schenectady  and  Troy  Rail  Road  Company  in  the  suit  of  Peck 
against  that  company,  which  he  claimed  showed  a  good  adverse 
possession  under  the  sheriif's  deed  to  Whittick  and  Foster  as 
against  the  heirs  at  law  of  Elias  Kane,  which  barred  their  legal 
title  to  the  premises.  The  parcel  of  land  purchased  from  Peter 
D.  Van  Vranken  was  not  covered  by  the  mortgage.  It  appear- 
ed that  the  court  of  appeals  decided  that  the  mortgage  was  valid 
upon  its  execution ;  that  the  part  of  the  premises  conveyed  by 
Kane  and  wife  to  Peter  A.  Van  Vranken  was  released  from  the 
lien  of  the  mortgage ;  that  the  sheriff's  deeds  to  Whittick  and 
Foster  were  and  are  void  for  uncertainty,  and  that  the  defend- 
ants who  claimed  estates  under  the  said  deed  did  not  take  and 
had  not  any  title  derived  therefrom,  and  that  said  premises  were 
subject  to  the  lien  of  the  mortgage,  which  had  not  been  paid  or 
extinguished.  A  bill  of  amendment  and  supplement  was  filed 
in  the  supreme  court,  and  a  decree  finally  entered  in  conformity 
with  the  decision  of  the  court  of  appeals,  ordering  among  other 
things,  the  premises  in  the  possession  of  the  petitioners  to  be 
sold,  in  the  inverse  order  of  alienation. 

Townsend  «^  Kellogg,  for  the  petitioners. 

P.  Potter  and  A.  C.  Paige,  for  Charles  A.  Peck. 


FRANKLIN— SEPTEMBER,  1854.  423 

Matter  of  the  New  York  Central  Rail  Road  Company. 

B^  the  Court,  C.  L.  Allen,  J.  The  Schenectady  and  Troj? 
Rail  Road  Company,  in  procuring  title  to  lands  under  their  or- 
ganization and  act  of  incorporation,  obtained  the  deeds  for  the 
parcels  of  land  contained  in  schedule  A,  at  the  times  and  in  the 
manner  and  for  the  consideration  stated  in  the  petition.  They 
supposed  and  believed  at  the  time,  that  they  obtained  a  good 
and  perfect  title,  and  went  on  and  constructed  their  rail  road  at 
a  great  expense,  over  the  lands  thus  purchased,  and  remained  in 
possession,  under  claim  of  title,  till  the  filing  of  the  bill  to  fore- 
close the  Kane  mortgage.  They  interpose  among  other  things 
the  defense  of  payment  of  the  mortgage,  and  their  title  thus  ac- 
quired. The  court  of  appeals  determined  and  decided  that  the 
mortgage  was  not  paid ;  that  it  was  a  good  and  valid  lien  upon 
the  premises  to  which  they  supposed  they  had  acquired  title, 
except  as  to  the  part  conveyed  to  Peter  A.  Van  Vrancken  ;  that 
the  shcMff's  deed  through  which  the  plaintiffs  and  those  under 
whom  they  claimed  derived  title  were  void  for  uncertainty ;  and 
a  decree  is  now  in  force  in  the  supreme  court,  in  obedience  to 
that  decision,  ordering  a  sale  of  these  premises  under  that  mort- 
gage, upon  which  it  is  adjudged  there  was  due  at  the  time  of 
the  entry  of  the  decree,  in  April  last,  the  sum  of  $18,771.16. 
The  petitioners  claim  that  the  Schenectady  and  Troy  Rail  Road 
Company  entered  upon  and  took  possession  of  those  lands  under 
the  right  of  eminent  domain,  as  prescribed  and  regulated  under 
the  act  of  1847,  ch.  272,  p.  301.  That  they  attempted  to  ac- 
quire title  in  the  manner  required  by  law,  but  have  failed,  and 
that  the  title  of  the  Schenectady  and  Troy  Rail  Road  Company, 
and  cf  the  petitioners,  is  defective  ;  and  the  first  question  that 
presents  itself  for  the  consideration  of  the  court  is  whether  their 
title  is  defective  or  not. 

By  the  13th  section  of  the  general  rail  road  act,(a)  it  is  pro- 
vided, that  in  case  any  company  is  unable  to  agree  for  the  pur- 
thase  of  ant/  real  estate  for  the  purposes  of  its  incorporation,  it 
shall  have  the  right  to  acquire  title  to  the  same  in  the  manner 
and  by  the  special  proceedings  pointed  out  in  the  act.  The  14th 
section  prescribes  what  the  petition  shall  contain,  and  among 
Ca)  i^u's  of  1850,  cA.  140;  1  R.  S.  itk  ed.  p.  1220. 


424  CASES  IN  THE  SUPREME  COURT. 

Matter  of  the  New  York  Central  Rail  Road  Company 

other  things  "  that  the  company  has  not  been  able  to  acquire 
title  thereto,  and  the  reason  of  such  inability;'^  and  it  must 
state  the  liens  or  incumbrances  upon  said  real  estate,  and  the 
names  of  those  who  have  estates  or  interests  in  said  real  estate  ; 
and  a  copy  of  the  petition  with  a  notice  is  directed  to  be  served 
on  all  persons  whose  interests  are  to  be  affected  by  the  proceed- 
ings. The  15th  section  declares  that  on  presenting  such  peti- 
tion, with  proof  of  service  of  copy  and  notice,  all  persons  whose 
estates  or  interests  are  to  be  affected  may  show  cause  against 
granting  the  prayer  of  the  petition,  and  may  disprove  any  of  the 
facts  alleged  in  it.  And  the  court,  after  hearing  the  proofs  and 
allegations  of  the  parties,  if  no  sufficient  cause  is  shown  against 
granting  the  prayer  of  the  petition,  shall  make  an  order  for  the 
appointment  of  commissioners.  The  21st  section,  under  which 
the  petitioners  claim  that  they  are  entitled  to  the  relief  sought 
for,  enacts,  "  that  if  at  any  time  after  an  attempt  to  acqiiire  title 
by  appraisal  of  damages  or  otherwise,  it  shall  be  found  that  the 
title  thereby  attempted  to  be  acquired  is  defective,  the  company 
may  proceed  anew  to  acquire  or  perfect  such  title,  in  the  same 
manner  as  if  no  appraisal  had  been  made  ;  and  at  any  stage  of 
such  new  proceedings,  the  court  may  authorize  the  corporation, 
if  in  possession,  to  continue  in  possession,  and  if  not  in  posses- 
sion to  take  possession  and  use  such  real  estate  during  the 
pendency  and  until  the  final  conclusion  of  such  new  proceedings 
and  may  stay  all  actions  or  proceedings  against  the  company  on 
account  thereof,  on  such  company  paying  into  court  a  sufficient 
sum.  or  giving  security  as  the  court  may  direct,  to  pay  the  com- 
pensation therefor  when  finally  ascertained  ;  and  in  every  such 
case  the  party  interested  in  such  real  estate  may  conduct  the 
proceedings  to  a  conclusion,  if  the  company  delays  or  omits  to 
prosecute  the  same." 

It  is  argued  by  the  counsel  in  opposition,  that  the  petitioners 
do  not  show  that  their  title  is  defective  within  the  meaning  and 
legal  construction  of  this  section  ;  that  a  mere  lien  or  mortgage 
does  not  affect  the  title ;  and  that  the  petitioners  or  the  Sche- 
nectady and  Troy  Rail  Road  Company  obtained  the  legal  title 
through  the  conveyances  from  their  grantors  claiming  to  derive 


FRANKLIN"— SEPTEMBER,  1854.  425 

^ , — 

Matter  of  the  New  York  Central  Rail  Road  Comi)any. 

title  under  the  sheriff's  deed ;  that  although  that  deed  was  ad- 
judged to  be  void  for  uncertaint}',  by  the  decision  of  the  court 
of  appeals,  yet  that  ail  other  proceedings  connected  Avith  it  hav- 
ing been  regular,  and  the  purchasers  or  grantees  having  entered 
into  possession  under  it  in  good  faith,  claiming  title,  and  they 
and  their  grantees  and  successors  having  been  in  such  possession 
with  such  claim  of  title  since  1831,  a  sufficient  adverse  posses- 
sion is  created,  and  at  all  events  such  a  one  as  will  authorize  a 
presumption  of  title  and  in  the  petitioners,  so  far  as  the  heirs  of 
Elias  Kane  are  concerned.  Without  proceeding  to  examine  the 
question  whether  such  adverse  possession  is  established  or  not, 
I  am  of  opinion  that  the  petitioners  come  within  the  provis- 
ions of  the  21st  section,  and  that  the  lien  of  the  mortgage  upon 
the  premises  described  in  schedule  A,  is  one  of  the  defects  con- 
templated in  that  section.  Why  was  it  required  in  the  14th 
section,  that  all  persons  who  have  estates  or  interests  in  the 
real  estate  to  which  title  is  sought  to  be  obtained  shall  be  made 
parties  and  be  named  in  the  petition,  and  shall  have  notice  of 
the  proceedings  ?  and  in  the  15th  section,  that  proof  should  be 
made,  on  presenting  the  petition,  of  service  of  notice  on  all  per- 
sons, whose  estates  or  interests  are  to  be  affected  by  the  pro- 
ceedings, and  that  such  persons  may  show  cause  against  the 
proceedings,  as  the  counsel  for  Mr.  Peck  are  now  Avilling  to  do 
under  that  section  ?  And  why  does  the  16th  section  require  that 
the  commissioners  shall  determine  and  report  what  compensa- 
tion shall  be  made  to  the  party  or  parties  owning^  or  interested 
in  the  said  real  estate ;  and  why  does  section  18  declare  that 
on  a  compliance  by  the  company  with  all  the  provisions  of  the 
act,  all  persons  who  have  been  made  parties  to  the  proceedings 
shall  be  divested  and  barred  of  all  right,  estate  and  interest  in 
said  real  estate  during  the  corporate  existence  of  the  company  ? 
The  answer  to  these  questions,  it  appears  to  me,  is  plain.  The 
object  of  the  act  undoubtedly  was  to  enable  the  rail  road  com- 
pany to  acquire  perfect  title  to  the  real  estate,  upon  which  their 
road  should  be  located,  unincumbered  by  any  lien  of  mortgage, 
judgment  or  otherwise.  The  19th  section  provides,  that  if  there 
are  adverse  and  conflicting  claimants  to  the  money,  or  any  part 
Vol.  XX.  54 


426  CASES  IN  THE  SUPREME  COURT. 


Matter  of  the  New  York  Central  Rail  Road  Company. 


of  it,  to  be  paid  as  compensation  for  the  real  estate  taken,  the 
court  may  direct  the  money  to  be  paid  into  the  said  court  by 
the  company,  and  may  determine  who  is  entitled  to  the  same, 
and  direct  to  whom  the  same  shall  be  paid,  and  may  in  its  dis- 
cretion order  a  reference  to  ascertain  the  facts  on  which  such 
determination  and  order  are  to  be  made ;  that  is,  in  cases  of 
mortgages  or  judgments,  it  may  order  the  moneys  to  be  paid  to 
the  owners  of  them  in  preference  to  the  owner,  or  holder  of  the 
legal  title,  or  so  much  as  shall  be  sufficient  to  satisfy  those  liens. 
It  is  not  pretended  but  that  if  the  holders  of  this  mortgage  had 
been  made  parties  to  an  original  proceeding  if  one  had  been 
instituted  under  the  act,  and  the  title  had  not  been  procured 
by  agreement,  the  claim  or  lien  of  the  mortgage  would  have 
been  extinguished.  But  it  is  said  that  the  bringing  in  in- 
cumbrancers  is  merely  incidental  to  the  proceedings  against  the 
owner  of  the  title.  The  object,  as  just  remarked,  was  to  enable 
the  company  to  procure  perfect  title,  and  to  extinguish  all  liens 
upon  the  property.  The  20th  section  says  the  court  shall  have 
power  at  any  time  to  amend  any  defect  or  informality  in  any 
of  the  special  proceedings  under  the  act  as  may  be  necessary,  or 
to  cause  new  parties  to  be  added,  and  to  direct  such  further  no- 
tices to  be  given  to  any  party  in  interest  as  it  deems  proper. 
It  is  said  the  holder  of  the  mortgage  has  not  such  an  interest  in 
the  land  as  is  intended  in  the  several  sections  of  the  act ;  and 
that,  unenforced,  it  cannot  render  the  title  defective.  It  is  true 
that  a  mortgage  may  be  assigned  without  delivery,  and  that  pay- 
ment discharges  it,  and  that  an  outstanding  mortgage  is  not  a 
breach  of  the  covenant  of  seisin  where  there  has  been  no  fore- 
closure or  entry.  (16  John.  R.  256.  7  id.  376.)  Nor  is  it  a 
transfer  of  title.  But  a  mortgagee  has  such  an  interest  in  the 
land  covered  by  the  mortgage,  that  he  may  stay  waste ;  and 
that  interest  remains  notwithstanding  a  transfer  of  the  title  by 
the  mortgagor,  and  the  intention  of  the  act  was  to  protect  his 
lien  as  well  as  to  provide  for  a  good  title  to  the  company,  by 
requiring  him  to  be  made  a  party  to  the  proceedings,  in  order 
that  he  might  receive  the  money  arising  from  the  appraisal,  in 
preference  to  the  mortgagor.     If  the  land  should  be  sold  under 


FRANKLIN— SEPTEMBER,  ISo*.  427 

Matter  of  the  New  York  Central  Rail  Road  Company. 

the  decree  upon  this  mortgage,  and  bid  off,  there  is  no  question 
Dut  that  the  company  could  proceed  under  the  21st  section 
against  the  purchaser.  And  are  they  obliged  to  wait,  until  the 
additional  expense  of  a  sale  is  incurred  ?  I  think  not ;  but  that 
they  may  proceed  immediately,  and  on  complying  with  all  the 
provisions  of  the  act,  have  their  lien  extinguished  as  to  the 
pieces  of  land  in  their  possession.  < 

It  is  objected  that  the  petition  is  defective  in  not  showing  an 
inability  to  agree  for  the  extinguishment  of  the  mortgage  lien  ; 
that  no  attempt  to  agree  for  a  discharge  of  the  lien  is  stated. 
The  16th  section  does  not  require  the  petitio7i  to  stale  that  the 
company  has  been  unable  to  agree  for  the  purchase,  but  that 
the  company  has  not  been  able  to  acquire  title  to  the  land,  and 
the  reason  for  such  inability.  The  petition  states  that  the  com- 
pany have  not  been  able  to  obtain  a  perfect  title  for  the  causes 
stated  in  it.  This  is,  I  think,  a  sufficient  compliance  with  the 
terms  of  the  section.  It  is  further  objected  that  no  proceedings 
can  be  had  to  perfect  the  title  under  the  21st  section,  unless 
there  has  been  a  previous  appraisal.  The  words  of  the  section 
are  that  the  party  may  proceed  under  it,  "  if  at  any  time  after 
an  attempt  to  acquire  title  by  appraisal  of  damages  or  otherwise, 
the  title  attempted  to  be  acquired  is  defective."  This  language 
is  sufficiently  broad  to  include  both  cases,  as  well  where  the  title 
is  attempted  to  be  pi'ocured  by  agreement  and  purchase,  as  by 
appraisal. 

It  is  still  further  objected,  that  the  Schenectady  and  Troy 
Bail  Road  Company,  by  the  exercise  of  ordinary  diligence  could 
before  constructing  their  road  have  acquired  actual  knowledge 
of  the  mortgage  by  a  search  of  the  record.  The  mortgage  was 
given  and  recorded  in  May.  1817.  The  titles  were  procured  in 
1841,  more  than  twenty  years  after  the  date  and  recording  of 
the  mortgage.  Searches  usually  do  not  extend  beyond  a  period 
of  twenty  years ;  and  if  they  do,  it  is  generally  presumed  that 
incumbrances  of  an  earlier  period  are  paid.  It  was  supposed 
this  mortgage  was  paid,  or  otherwise  extinguished ;  and  the  su- 
preme court  dismissed  the  bill  of  foreclosure.  I  think  the  peti- 
tioners are  not  too  late  in  applying  for  relief,  after  the  decision 


428  CASES  IN  TEE  SUPEEME  COURT. 

Matter  of  the  New  York  Central  Rail  Road  Coir,pany. 

of  the  court  of  appeals  declaring  the  validity  and  lien  of  the 
mortgage  upon  the  premises.  On  the  whole  I  am  of  opinion 
that  the  prayer  of  the  petition  should  be  granted,  but  that  the 
coramissioAcrs  should  be  appointed  under  the  act  of  April,  1854, 
which  provides  for  the  appointment  of  three  commissioners  by 
tLe  court,  who  reside  in  the  county  where  the  lands  are  situated, 
or  some  adjoining  county. 

This  conclusion  is  arrived  at  without  reference  to  section  60, 
(1  R.  S.  1242,  ^th  ed.;  Laws  o/1847,  ch.  272,  §  3,)  which  was 
no.  referred  to  by  either  party  on  the  argument.  That  section 
provides  for  a  case  where  a  rail  road  company  shall  not  have 
acquired  a  valid  and  sufficient  title  to  any  land  upon  which  they 
have  constructed  their  track,  or  where  the  title  has  been  or  shall 
be  hereafter  rendered  invalid  by  reason  of  any  mortgage,  judg- 
ment or  other  lien ;  and  the  section  declares  how  the  company 
may  acquire  title  in  such  a  case. 

It  was  insisted  that  if  the  court  had  jurisdiction  to  appoint 
commissioners,  they  would  be  bound  to  include  in  their  appraise- 
ment the  value  of  the  improvements  or  "industrial  accessions," 
inasmuch  as  the  point  was  expressly  passed  upon  and  adjudi- 
cated by  the  court  of  appeals  ;  and  it  was  suggested  that  the 
court,  to  prevent  subsequent  litigation,  should  direct  the  com- 
missioners to  embrace  the  value  of  the  improvements  in  their 
appraisement.  I  think  the  court,  at  this  stage  of  the  proceed- 
ings, have  nothing  to  do. with  that  question. 

Section  16  prescribes  the  duties  of  the  commissioners,  and 
directs  them  to  give  notice  to  the  parties  when  they  will  meet, 
and  it  directs  them  to  hear  the  proofs  and  allegations  of  the 
parties,  to  reduce  the  testimony  to  writing,  and  make  such  com- 
pensation as  shall  be  just.  They  are  to  make  report  of  their 
proceedings,  which  report  must  be  confirmed  on  notice,  by  the 
court,  who  may  direct  as  to  whom  the  moneys  shall  be  paid. 
The  appraisal  must  be  made  as  the  statute  directs,  and  the  court 
have  no  power  to  vary  that  direction. 

The  motion  must  be  granted,  and  John  Willard,  George  G. 
Scott  and  Joseph  W.  Horton  are  appointed  commissioners.  The 
order  must  direct  that  all  proceedings  on  the  part  of  Charles 


FKANKLm— SEPTEMBER,  1S54,  429 


Pepper  v.  Haight. 


A.  Peck,  under  his  decree,  to  foreclose  his  mortgage,  be  stayed 
as  to  the  several  parcels  of  land  mentioned  in  the  petition,  until 
the  further  order  of  the  court. 

[Franklin  General  Term,  September  4,  1854.     Hand,  Cody,  C.  L.  Allen 
and  James,  Justices.] 


Pepper,  administrator  <fec.  vs.  Haight  and  others.  ^^^  ^^ 

26h  6(M 
43k  215 
A  deed  of  conveyance,  and  a  bond  and  mortgage  executed  by  the  grantee,   to 

secure  the  payment  of  the  purchase  money,  and  bearing  even  date  with  the 

deed,  form  parts  of  one  transaction,  and  are  to  be  construed  together,  as  one 

instrument.  • 

It  is  competent  for  a  defendant  to  waive  a  technical  legal  defense  grounded  on 
an  illegality  in  which  he  himself  knowingly  participated,  and  to  affirm  the 
contract  so  far  as  the  parties  to  it  were  concerned. 

Objections  may  be  urged,  on  an  argument  at  a  general  terra,  which  were  not 
raised  on  the  trial,  if  they  are  such  as  could  not  have  been  obviated  at  the  trial. 

A  defense  that  a  mortgage  is  void,  for  being  given  upon  an  illegal  consideration, 
will  be  waived  by  the  omission  to  set  it  up  specifically  in  the  answer,  and,  by 
admitting  the  validity  of  the  mortgage  in  the  answer  and  on  the  trial. 

The  sale  of  a  pretended  title  to  land  is  an  illegal  consideration.  It  is  both  crim- 
inal and  immoral ;  and  a  mortgage  given  for  the  purchase  money  is  void. 

Tliere  is  a  distinction  between  contracts  which  are  immoral  and  criminal  and 
those  that  are  merely  void.  Where  the  contract  is  simply  void  and  not  criminal, 
assistance  maj-  be  given  to  a  party  to  recover  back  his  money,  while  the  contract 
remains  executory.  Where  monej'  has  been  paid  on  an  illegal  contract  which 
has  been  executed,  and  both  parties  are  in  pari  delicto,  neither  of  them  can 
recover  from  the  other  the  money  so  paid. 

A  distinction  also  exists  where  the  action  is  in  afiirmance  of  the  contract,  and  the 
object  is  to  enforce  ita  perfomiance,  and  where  the  action  proceeds  in  disaf- 
Qrmance  of  it. 

Where  both  parties  are  e<fually  guiltj',  as  where  they  make  a  contract  which  is 
illegal,  because  contrary  to  the  provisions  of  a  statute,  or  the  general  principles 
of  public  policy,  the  rule  potior  est  conditio  defendentis  applies. 

The  principle  is  that  no  court  will  lend  its  aid  to  a  man  upon  an  immoral  or  ille- 
gal contract — not  for  the  sake  of  the  defendant,  equally  in  fault  with  the 
plaintiff,  and  in  whose  mouth  it  does  not  lie  to  say  the  contract  is  immoral 
or  illegal — but  because  the  court  will  not  lend  its  aid  to  such  a  plaintiff. 

AVliere  a  mortgage  contains  a  clause  showing  that  a  part  of  its  consideration  is 
the  sale  of  certain  premises  in  the  possessit^n  of  a   third  person  and  held  ad 


430  CASES  IN  THE  SUPREME  COURT. 

Pepper  v.  Haight. 

versely  by  him,  under  a  claim  of  title,  the  contract  is  directlj-  in  conflict  with 
the  statute  prohibiting  the  sale  of  pretended  titles,  (2  /?.  S.  691,  ()  6.)     And 
both  parties  are  guilty  of  a  misdemeanor,  and  the  contract  is  entirely  void. 
Where  the  condition  of  a  mortgage,  given  for  the  purchase  money,  stated  that 
the  title  to  a  portion  of  the  morgaged  premises  was  in  dispute,  the  land  being 
claimed  by  a  third  person,  and  that  the  mortgagee  had  agreed  to  give  a  good  title 
to  such  disputed  part,  and  stipulated  that  if  he  failed  to  do  so,  before  or  at 
the  time  the  first  payment  became  due  on  the  mortgage,  the  mortgagor  should 
have  the  right  to  keep  back  from  the  mortgage  moneys  whatever  sums  he  should 
have  to  pay  to  obtain  a  good  title  and  possession  of  the  disputed  part  of  the 
premises ;  Held  that  the  covenant  to  give  a  good  title  was  not  a  condition  pre- 
cedent to  the  payment  of  the  mortgage. 
When  mutual  covenants  go  to  the  whole  consideration  on  both  sides,  they  are 
mutual  conditions,  the  one  precedent  to  the  other ;  but  when  the  covenants 
go  to  only  a  part  of  the  consideration,  then  a  remedy  lies  on  the  covenant,  to 
recover  damages  for  a  breach  of  it,  but  it  is  not  a  condition  precedent. 
• 
rprilS  was  an  action  brought  by  the  plaintiff  as  administrator 

_L    of Phillips,  deceased,  to  foreclose  a  mortgage.     The 

defendants  Haight  and  wife  alone  defended.  They  set  up  that 
the  mortgage  was  subject  to  a  condition,  which  was  recited 
in  it,  and  in  the  answer.  The  condition,  among  other  things, 
stated  that  Haight  had,  on  the  day  of  the  date  of  the  mort- 
gage, purchased  of  Phillips  the  premises  described  in  it,  being 
IOI3  acres  of  land.  That  from  three  to  five  acres  of  the 
land  were  in  the  possession  of  one  Philip  Ellsworth,  and  was 
claimed  as  the  property  of  said  Philip  or  the  heirs  of  John  C. 
Smith.  That  Phillips,  when  he  bargained  and  sold,  promised 
that  he  would  give  a  good  title  to  the  disputed  part  of  the 
premises  to  Haight,  and  would  give  quiet  and  peaceable  posses- 
sion of  the  disputed  premises  free  and  clear  of  any  expense. 
And  it  was  agreed  that  if  Phillips  failed  to  give  Haight  a  good 
and  sufficient  warranty  title  of  the  disputed  part  of  the  prem- 
ises, and  quiet  and  peaceable  possession,  before  or  at  the  time 
the  first  payment  became  due  on  the  mortgage,  Haight  should 
have  the  right  to  keep  back  from  the  moneys  due  or  to  become 
due  on  the  mortgage  whatever  sum  or  sums  of  money  he  should 
have  to  pay  to  obtain  a  good  and  sufficient  warranty  title  and 
possession  of  the  disputed  part  of  the  premises,  with  all  costs 
«nd  expenses.     That  Phillips  or  his  heirs   had  not   performed 


FRANKLIN— SEPTEMBER,  1854.  43] 


Pepper  v.  Haight. 


the  conditions  mentioned  in  the  mortgage,  and  had  not  made, 
executed  and  delivered  to  Haight  a  good  and  sufficient  war- 
ranty title  deed,  nor  any  deed,  which  conveyed  to  Haight  a 
good  and  sufficient  title  in  fee  simple  to  said  disputed  lands, 
and  had  never  put  Haight  into  quiet  and  peaceable  possession 
of  them.  That  Haight  had  performed  all  the  conditions  on  his 
part,  and  on  the  first  of  April,  1837,  paid  on  the  mortgage  the 
sum  of  $280,  and  in  April,  1839,  the  further  sum  of  $140. 
That  the  dwelling  houses,  barns,  out  buildings,  garden,  well, 
(fee,  were  all  situated  on  the  disputed  land  claimed  by  Ellsworth, 
and  that  in  1848  Ellsworth  commenced  an  action  in  the  supreme 
court  against  Haight  to  recover  possesion  of  the  last  described 
lands  and  premises  ;  and  that  in  January  Haight  was  compelled 
to  deliver  up  possession  or  pay  Ellsworth  $500,  and  $20  costs 
of  suit ;  for  one  acre  of  said  disputed  land  on  which  said  build- 
ings were  situated.  That  except  this  one  acre  the  whole  of 
said  disputed  land  had  always  remained  in  the  possession  of 
Ellsworth,  who  had  refused  to  sell  or  deliver  possession  of  the 
same.  That  Haight  had  expended  a  large  sum  of  money  in 
.endeavoring  to  get  title,  amounting  to  $100. 

The  reply  denied  the  facts  set  up  in  the  answer,  and  averred 
that  Ellsworth  always  remained  in  possession  of  the  disputed 
part  of  the  premises  ever  since  the  giving  of  the  mortgage. 
That  if  Ellsworth  ever  commenced  any  suit  against  Haight  it 
was  not  commenced  in  good  faith  but  in  collusion  with  Haight. 
The  action  was  referred  to  John  M.  Carroll,  Esq.  to  take  the 
testimony  and  report  to  the  court.  The  referee  reported  the 
testimony  accompanied  by  a  map  showing  the  location  of  the 
premises.  The  greater  part  of  them,  including  the  house  and 
barn  and  well,  were  situated  southwest  of  a  road  marked  on  the 
map  "  a  a,"  and  passing  by  the  house.  Phillips  built  this  house 
and  barn,  while  he  occupied,  and  was  in  possession  of  all  that 
part  of  the  farm,  until  he  sold  to  Haight,  who  succeeded  him  in 
possession.  Phillips  was  in  possession  twenty  years  ago.  The 
land  on  the  north  side  of  the  road  called  the  three  or  five  acres 
had  been  a  common  for  20  or  25  years  until  Ellsworth  bought 
the  adjoining  lot  north  of  that  piece,   in   1834.     In   about  t^n 


432  CASES  IN  THE  SUPREME  COURT. 

Pepper  v,  Ilaiglit. 

years  after,  Ellsworth  enclosed  the  piece  north  of  the  road  witli 
his  farm.  It  was  marked  on  the  map  h,  and  called  the  three 
cornered  piece.  The  defendants  produced  a  deed  from  Hiram 
Dye  to  Ellsworth,  dated  12  April.  1834,  covering  the  51^  acres, 
which  the  defendants  claimed  was  the  disputed  land,  including 
the  house,  garden,  barn  and  well  south  of  road  a  a.  Ellsworth 
after  that  deed,  commenced  an  action  in  the  supreme  court,  iis 
he  testified,  against  Ilaight,  in  good  faith,  to  recover  possession 
of  the  buildings  and  land  south  of  the  road  a  a,  (about  one 
acre,)  and  afterwards  sold  the  land  to  Haight  for  $500,  being 
about  its  value,  as  he  said.  The  evidence  of  the  commence- 
ment of  the  suit,  by  parol,  was  objected  to  by  the  plaintiffs,  as 
not  the  best  evidence,  and  it  was  received  subject  to  the  objec- 
tion. It  appeared  that  the  witness  Ellsworth  was  the  father- 
in-law  of  Haight.  That  he,  (Ellsworth,)  knew  that  Phillips 
lived  on  the  land  described  in  the  mortgage,  25  or  30  years  ago ; 
that  he  recollected  when  Phillips  built  the  house  and  barn 
now  occupied  by  Haight,  and  dug  the  well  south  of  the  road 
a  a ;  and  built  a  fence  in  front  along  the  road  a  a.  That 
Haight  went  into  possession  of  the  same  premises  up  to  the 
road  a  a,  and  he  and  Byford  had  occupied  them  ever  since. 
After  Phillips  came  to  the  premises,  Ellsworth  occupied  up  to 
the  road  a.  a.  on  the  south,  and  Phillips  up  to  the  road  on  the 
north.  It  Avas  proved  that  this  road  a  a  had  been  the  divid- 
ing line  between  the  premises  in  the  possession  of  Phillips  and 
those  occupying  on  the  other  side,  for  30  or  40  years,  and  had 
never  been  altered.  Other  testimony  was  taken,  such  of  which 
as  is  material  is  alluded  to  in  the  opinion  of  the  court.  The 
plaintiffs,  after  the  death  of  their  testator,  demanded  on  the  prem- 
ises, the  amount  due  on  the  bond  and  mortgage,  offering  to  deduct 
out  of  what  was  due  the  value  of  the  piece  of  land  in  possession  of 
Ellsworth  from  the  time  of  the  date  of  the. mortgage  ;  which  offer 
was  refused.  The  judge  at  the  trial,  directed  the  referee  to  report 
the  value  of  this  piece  of  land,  and  ordered  that  sum  to  be 
deducted  from  the  mortgage  at  its  date,  and  judgment  in  favor 
of  the  plaintiffs  fo]:  the  balance,  with  interest,  after  allowing 
all  payments.     The  referee  reported  the  value  at  $65,  which 


FRANKLIN— SEPTEMBER,  1854.  433 

Pepper  v.  Haight. 

he  deducted  accordingly,  from  the  amount  of  the  mortgage 
($1780,)  at  its  date,  on  the  first  of  Nov.  1836,  and  reported 
the  balance  due,  after  allowing  payments  to  the  amount  of  about 
$340,  to  be  $966.54  for  which  judgment  was  entered  in  favor 
of  the  plaintiifs  and  a  sale  of  the  premises  ordered.  From 
this  judgment  the  defendants  Haight  and  Avife  appealed. 

Dodge  ^^  Campbell,  for  the  plaintiffs. 

Wm.  Wait,  for  the  defendants,  Haight  and  wife. 

i>y  the  Court,  C.  L.  Allen,  J.  The  learned  justice  who  tried 
the  action,  passed  upon  all  the  questions  of  fact,  and  as  I  un- 
derstand from  reading  the  case,  found  that  the  piece  of  land 
designated  in  the  mortgage  as  the  disputed  part  of  the  premises, 
consisting  of  from  three  to  five  acres  of  land,  was  that  part  in 
possession  of  Philip  Ellsworth  at  the  time  of  the  execution  of 
the  mortgage,  and  Iving  north  of  the  road  a  a.  I  do  not  see 
how  he  could  well  come  to  any  other  conclusion.  The  words  in 
the  condition  itself,  recited  in  the  mortgage,  are  that  "from  3 
to  5  acres  of  said  land  is  in  the  possession  of  one  Philip  Ells- 
xcorth,  and  is  claimed  as  the  property  of  said  Philip  Ellsworth 
or  the  heirs  of  John  C.  Smith."  Ellsworth  himself  swears, 
and  it  was  also  proved  by  other  testimony,  that  Phillips  built 
the  house  and  barn  south  of  the  road  a  a,  and  was  in  pos- 
session of  them  until  and  when  he  conveyed  to  Haight,  in 
1836,  who  took  immediate  possession  thereafter  and  had 
iilways  been  in  possession;  and  that' Ellsworth  never  was  in 
possession  of  any  part  south  of  the  road  a  a,  but  only  of 
the  three  cornered  piece  marked  6,  north  of  that  road,  which  had 
been  the  dividing  line  between  the  Phillips  farm  and  the  part 
north  of  it  for  more  than  30  years.  There  can  be  little  doubt, 
therefore,  but  that  the  disputed  land  referred  to  in  the  mort- 
gage was  north  of  the  road  a  a,  and  did  not  include  the  house 
and  other  buildings  occupied  by,  and  in  possession  of  Phillips  at 
the  time  of  its  date.  The  mortgage  covers  two  certain  pieces 
or  parcels  of  land,  particularly  described  in  it ;  one  containing 
49  acres  and  being  part  of  lot  No.  244,  in  the  eastern  allotment 

Vol.  XX.  55 


434        CASES  I^T  THE  SUPREME  OOUKT. 

Pepper  v.  Haight. 

of  Kingsborough,  in  Mayfield,  and  the  other  being  part  of  lot 
No.  242,  in  the  same  allotment,  containing  52^  acres.  It  was 
to  secure  the  payment  of  the  sum  of  $780,  payable  in  install- 
ments, payment  of  which  was  to  be  made  on  the  premises ;  and 
payments  had  been  made,  at  different  times,  of  $280.  It  is 
conceded  that  it  was  given  to  secure  a  part  of  the  purchase 
money  of  the  premises.  But  no  deed  from  Phillips  was  exhib- 
ited in  evidence,  and  the  defendants  chose  to  rely  upon  the 
agreement,  contained  in  the  mortgage.  It  nowhere  appears  dis- 
tinctly, Avhat  the  deed  covered.  From  the  recital  in  the  mort- 
gage it  would  appear  somewhat  doubtful  whether  it  included 
the  65  acres  disputed  land  or  not,  for  it  is  there  stated  that 
Phillips  had  promised  "  when  he  bargained  and  sold  the  prem- 
ises, that  he  would  ffive  a  good  title  of  the  said  disputed  part, 
and  would  give  quiet  and  peaceable  possession  of  the  said 
premises,  free  and  clear  of  all  expense  ;"  and  if  Phillips,  his  heirs 
and  assigns  should  neglect  and  fail  to  give  Haight  a  good  and 
sufficient  icarranty  title  of  the  disputed  premises,  and  quiet 
and  peaceable  possession,  Haight  was  to  be  at  liberty  to  hold 
back  so  much  of  the  mortgage  money  as  he  should  be  compelled 
to  pay  to  obtain  and  acquire  such  good  title.  The  probability, 
however,  is  that  the  disputed  part  was  conveyed,  as  it  was  in- 
cluded in  the  mortgage.  But  it  was  probably  by  a  quitclaim,  as 
no  warranty  deed  is  shown  to  have  been  given,  and  the  breach 
alleged  in  the  answer  is,  that  Phillips,  his  heirs  and  assigns 
have  7wt  made,  executed  and  delivered  to  Haight,  his  heirs  and 
assigns,  a  good  and  sufficient  warranty  title  deed,  nor  any  deed 
which  conveys  to  Haight  a  good  and  sufficient  title  in  fee  simple 

'  to  said  disputed  land  mentioned.  The  mortgage  is  all  we  have 
to  rely  upon  for  evidence,  as  before  remarked ;  and  that  does 
not  show  that  there  was  a  warranty  of  title  at  the  time  of  its 

■  execution ;  on  the  contrary'-,  if  it  proves  any  thing  it  shows  that 
Phillips  covenanted  and  agreed  to  procure  and  give  such   deed 

.  thereafter.  The  statute,  (1  R.  S.  738,  §  140,)  expressly  de- 
clares, that  no  covenant  shall  be  implied  in  any  conveyance  of 
real  catate,  whether  such  conveyance  contain  special  covenants 
■or  not.     (11  Paige,  bQQ.) 


FRANKLIN— SEPTEMBER,  185-i.  435 

Pepper  v.  Haight. 

It  is  contended  on  the  part  of  the  defendants  that  the  bond 
and  mortgage  in  this  case  are.  void,  and  that  no  action  can  be 
sustained  upon  them.  It  is  probable,  as  before  remarked,  in- 
deed it  is  conceded,  that  the  bond  and  mortgage  were  executed 
to  secure  a  part  of  the  purchase  money  of  the  premises  de- 
scribed in  the  mortgage  and  which  had  been  conveyed  by  deed  of 
Phillips,  bearing  even  date  with  the  mortgage.  All  these  instru- 
ments therefore  form  parts  of  one  transaction,  and  are  to  be  con- 
strued together  as  one  instrument.  (Cornell  v.  Todd,  2  Deiiio, 
130.     1  Comst.  186.     10  Wend.  218,  and  various  other  cases.) 

The  objection  taken  to  this  defense  is,  1.  That  the  defend- 
ants have  not  set  up  or  pretended  to  any  such  defense  in  their 
answer,  but  on  the  contrary  that  the  mortgage  is,  by  the  answer, 
admitted  to  be  good  and  binding,  and  that  the  defendants  claim 
to  have  made  payments  upon  it,  and  ask  other  relief  under  it, 
and  nowhere  claim  it  to  be  void.  2.  That  they  raised  no  such 
point  on  the  trial  before  the  justice,  and  are  there^fore  not  at 
liberty  to  present  it  here  ;  and  3.  That  the  mortgage  is  perfectly 
valid  as  between  Phillips  and  Haight,  and  all  others,  except 
the  -person  in  possession  of  the  land  holding  under  the  adverse 
title. 

It  is  true,  that  the  defendants  in  their  ansAver  do  not  pretend 
or  claim  that  the  mortgage  is  void,  but  rather  confirm  its  va- 
lidity, and  claim  relief  under  it.  This  however  may  be  said  to 
De  such  relief  as  the  court  may  consider  them  entitled  to,  pro- 
vided it  be  held  that  the  mortgage  is  good.  The  question  is, 
were  the  defendants  bound  to  set  up  or  aver  in  their  answer 
that  the  contract  was  void,  in  order  to  enable  them  to  avail 
themselves  of  such  a  defense  ?  As  betAveen  themselves,  parties 
may  waive  the  defense  Avhich  the  law  authorizes  them  to  make  ; 
and  before  the  code  they  could  be  permitted  to  take  the  objec- 
tion or  make  the  defense  without  special  plea,  under  the  general 
issue.  Such  was  the  case,  for  instance,  as  to  the  defense  of 
usury.  But  since  the  adoption  of  the  code,  there  is  no  longer, 
strictly  speaking,  any  such  plea  as  the  general  issue ;  and  there 
can  be  no  answer,  therefore,  in  that  form.  One  object  of 
the  code,  it  has  been  remarked,  Avas  to  compel  parties  to  disclose 


436  CASES  IX  THE  SUPREME  COURT. 

Pepper  V.  Ilaight. 

to  eacli  other  the  f^icts  upon  which  they  respectively  relied  tc 
uphold  tlie  claim  on  one  side  and  to  maintain  the  defense 
on  the  other.  {Report  of  Coni'rs,  141.)  And  m  Fay  v.  Tr/7- 
son,  (10  Barh.  321,)  it  was  hefd  that  the  defense  of  usury,  if 
the  defendant  intended  to  rely  upon  it,  must  be  distinctly  set 
out  in  the  answer.  (6  Hoiv.  302.)  And  on  a  sealed  instrument 
the  statute  makes  it  necessary  that  the  want  of  legality  of  con- 
sideration should  be  set  out  in  the  answer,  if  the  defendant 
intends  to  rely  upon  it  as  a  defense.  (2  R.  S.  3c?  ed.  504,  §§  96, 
97.)  The  answer  here  not  only  does  not  claim  that  the  mort- 
gage is  void,  but  admits  its  validity  and  insists  that  the  defend- 
ants have  performed  all  the  conditions  required  in  it,  on  their 
part,  and  have  paid  several  sums  of  money  upon  it.  That  they 
have  been  compelled  to  pay  ^500  to  procure  title  to  part  of  the 
disputed  lands,  and  other  expenses,  which  they  claim  to  have 
deducted  from  its  amount.  Now  if  it  be  conceded  that  it  was 
not  necessai-y  specifically  to  set  up  this  defense  in  the  answer, 
(which  I  am  not  prepared  to  concede,)  still  it  was  competent  for 
the  defendants  to  Avaive  a  technical  legal  defense  grounded  on 
an  illegality  in  which  they  themselves  knowingly  participated, 
and  to  affirm  the  contract  so  far  as  the  parties  to  it  were  con- 
cerned. It  is  true  the  law  will  always  leave  them  where  it 
finds  them,  and  not  assist  either,  where  the  rights  of  third  per- 
sons do  not  require  an  interference.  But  they  may  carry  out 
tlieir  own  agreements,  subject  to  all  liability  which  they  incur, 
criminally  or  otherwise,  if  they  do  not  call  upon  the  courts  to 
aid  them.  And  I  do  not  perceive  why,  as  against  each  other, 
they  may  not  waive  any  defense  grounded  upon  their  own  tur- 
pitude in  part,  as  it  has  repeatedly  been  held  they  may  waive 
the  defense  of  usury. 

Again  ;  the  defendants  not  only  omitted  to  set  up  this  de- 
fense in  their  answer  but  they  did  not  claim  or  interpose  it 
upon  the  trial  of  the  cause.  This  is  another  evidence  of  tcai- 
vcr.  The  exception,  it  is  true,  to  the  decision  of  the  court, 
embraces  this  objection  ;  but  it  does  not  appear  to  have 
been  presented  on  the  trial,  or  passed  upon  by  the  judge. 
That,  perhaps,  was  not  necessary,  to  prevent  its  being  present- 


FRANKLIN— SEPTEMBER,  1854.  437 

Pepper  v.  Haight. 

^d  here,  if  the  answer  was  sufficient.  Objections  may  be  urged 
on-  the  argument  at  general  term  which  were  not  raised 
on  the  trial,  if  they  are  such  as  could  not  have  been  obviated 
at  the  trial.  (5  Wend.  301.  20  id.  210.  16  id.  522.)  If 
the  mortgage  was  void,  then  the  ol)jection  could  not  have  been 
answered  at  the  circuit,  any  more  than  it  could  have  been  here. 
But  some  additional  evidence  might  have  been  given,  going  to 
shoAV  that  the  case  w^as  not  strictly  within  the  statute.  I  am 
inclined  to  the  opinion  that  the  defense,  was  waived,  by  not 
specifically  setting  it  up,  and  admitting  the  validity  of  the  mort- 
gage in  the  answer,  and  on  the  trial.  Suppose,  however,  that 
the  objection  may  be  taken  here,  is  it  fatal  to  this  objection  ? 

There  is  no  doubt  but  that  the  consideration  of  the  bond  and 
mortgage  was  the  conveyance  of  the  mortgaged  premises.  This 
Avas  an  entire  consideration,  and  if  it  was  in  part  illegal,  is  not 
the  whole  contract  void  ?  {Chit,  on  Cont.  425.  Burt  v.  Place, 
6  Coweii,  431.  Mackie  v.  Cairns,  5  ic?.  548,  580.  Hyslop  v. 
Clark,  14  John.  458.  13  Wend.  53.  20  id.  390.  Nellis  v. 
Clark,  4  Hill,  424.)  We  have  recently  so  held  in  the  case  of 
Barton  v.  The  Port  Jackson  and  Union  Falls  Plank  Road 
Co.,  (17  Barb.  397.)  In  Woodworth  v.  Janes,  (2  John.  Cas. 
417,)  this  principle  was  applied  to  a  sale  of  land,  and  it  was  held, 
in  the  court  of  errors,  where  A.  executed  to  B.  a  quitclaim  deed 
for  land,  claimed  by  the  state  of  Pennsylvania,  and  received  the 
notes  of  B.  in  payment,  on  a  bill  filed  to  obtain  an  injunction  to 
stay  the  collection  of  the  notes,  that  the  sale  was  maintenance 
in  selling  a  pretended  title,  and  that  both  parties  being  in  pari 
delicto,  a  court  of  equity  would  not  relieve  either,  but  leave 
them  to  pursue  their  remedies  at  law,  and  the  bill  was  dismissed. 
In  Whittaker  v.  Cone,  same  volume,  p.  58,  the  supreme  court 
decided  that  where  notes  were  given  for  the  purchase  money  on  a 
contract  for  the  sale  and  purchase  of  Susquehanna  lands,  within 
the  jurisdiction  of  Pennsylvania  under  the  Connecticut  claim  to 
those  lands,  the  sale  was  illegal  and  the  consideration  void. 

The  Gth  section  of  the  statute  (2  R.  S.  691)  declares  it  to  be 
a  n:isilemeanor  for  any  person  to  buy  or  sell,  or  in  any  manner 
procure  or  make  or  take  any  promise  or  covenant  to  convey  any 


438      OASES  m  the  supkeme  court. 

Pepper  v.  Ilaight. 

pretended  right  or  title  to  any  lands  or  tenements,  unless  the 
grantor  thereof,  or  the  person  making  such  promise,  shall  have 
been  in  possession  of  the  same,  or  of  the  reversion  or  remainder, 
or  have  taken  the  rents  and  profits  thereof  for  one  whole  year 
before  such  grants  conveyance  or  promise.  The  sale  of  a  pre- 
tended title  to  land  is  therefore  an  illegal  consideration  ;  it  is 
both  criminal  and  immoral.  There  is  a  distinction  undoubtedly 
between  contracts  which  are  immoral  and  criminal  and  those 
that  are  merely  void.  Where  the  contract  is  simply  void  and 
not  criminal,  assistance  may  be  given  to  a  party  to  recover  back 
his  money,  where  the  contract  remains  executory.  Where  money 
has  been  paid  on  an  illegal  contract  which  has  been  executed, 
and  both  parties  are  in  pari  delicto,  neither  of  them  can  recover 
from  the  other  the  money  so  paid.  A  distinction  exists  where 
the  action  is  in  affirmance  of  the  contract  and  the  object  is  to  en- 
force its  performance,  and  where  the  action  proceeds  in  disaffirm- 
ance of  it.  (4  Barb,  524,  527,  and  cases  there  cited.)  Where 
both  parties  are  equally  guilty,  as  where  they  make  a  contract 
Avhich  is  illegal,  because  against  the  provisions  of  a  statute,  or 
the  general  principles  of  public  policy,  the  rule  "  potior  est 
conditio  defendentis^^  applies.  (4  Hill,  624.  20  Wend.  26. 
20  John.  386.) 

The  principle  is  that  no  court  will  lend  its  aid  to  a  man  upon 
an  immoral  or  illegal  contract,  not  for  the  sake  of  the  defendant, 
equally  in  fault  with  the  plaintiff,  and  in  whose  mouth  it  illy 
lies  to  say  the  contract  is  immoral  or  illegal,  but  because  the 
eourt  will  not  lend  its  aid  to  such  a  plaintiff.  (20  Wend.  32.) 
Whatever  the  parties  have  fraudulently  or  illegally  contracted 
to  execute,  the  law  refuses  to  compel  the  contractor  to  execute, 
or  pay  damages  for  not  executing.  It  will  leave  the  parties 
where  it  finds  them.  {See  Perkins  v.  Savage,  15  Wend.  412 ; 
7  Paige,  616,  653.) 

Now  test  the  facts  in  the  case  under  consideration  with  those 
principles  and  decisions,  and  to  what  conclusion  must  we  arrive  7 
The  mortgage  given  in  evidence  by  the  plaintiff  contains  a  clause 
showing  that  part  of  its  consideration  was  the  sale  of  certain 
premises  in  "  the  possession  of  Philip  Ellsworth  and  claimed  aa 


FRAI5  KLIN— SEPTEMBER,  1854.  439 

Pepper  v.  Haight. 

the  property  of  Ellsworth  or  the  heirs  of  John  C.  Smith  ;  held 
adversely,  or  stated  to  be  the  disputed  part  of  the  premises  " 
thus  sold  and  conveyed ;  coming  directly  in  conflict  Avith  the 
provisions  of  the  section  of  the  statute  before  cited,  and  making 
both  parties  guilty  of  a  misdemeanor,  and  the  act  or  contract 
itself  entirely  void ;  and  being  in  part  only  executed,  it  cannot 
be  farther  enforced  by  either  party  as  against  the  other.  It  is 
said  that  being  under  another  section  of  the  statute,  declaring 
(1  R.  S.  739,  §  147,  [160,]  4^A  ed.  169)  that  every  grant  of  land 
shall  be  absolutely  void,  if  at  the  time  of  the  delivery  thereof 
such  lands  shall  be  in  the  actual  possession  of  a  person  claiming 
under  a  title  adverse  to  that  of  the  grantor,  the  conveyance  and 
contract  was  only  void  as  to  the  person  holdiqg  adversely,'  and 
not  as  between  grantor  and  grantee.  In  Livingston  v.  Proseus, 
(2  Hill,  526,  528,)  it  is  said  to  be  well  settled  that  as  between 
grantor  and  grantee  and  persons  standing  in  legal  privity  with 
them,  the  deed  is  operative  and  passes  the  title ;  and  a  great 
number  of  cases  are  there  cited  in  support  of  the  principle. 
The  case  of  Van  Hoesen  v.  Benham,  (15  Wend.  164,)  de- 
cides that  a  deed  of  land  held  adversely  at  the  time  is  effectual 
between  the  parties  to  the  conveyance ;  that  the  deed  ope- 
rates to  estop  the  grantor  ;  that  it  is  a  principle  running  through 
the  books,  that  a  feoffment  upon  maintenance  or  champerty  is 
good  as  between  feoffor  and  feoffee,  and  is  only  void  against  him 
who  hath  right. 

It  has  been  before  remarked  that  there  was  no  warranty  of 
title  and  no  eviction,  and  there  has  been  a  payment  of  a  part  of 
the  purchase  money.  Under  those  circumstances  the  mortgagor 
cannot  be  relieved  from  proceedings  on  the  mortgage.  [Abbott 
V.  Allen,  2  John.  Cli.  519.     Bumpus  v.  Plainer,  1  id.  218.) 

I  do  not  however  agree  with  the  counsel  for  the  defendants, 
that  the  covenant  in  the  mortgage,  to  give  a  good  title,  was  a 
condition  precedent  to  the  payment  of  the  mortgage.  It  was 
clearly  not  so  intended  by  the  parties.  The  defendant  Haight 
made  payments  on  the  mortgage.  By  the  provision  in  it  Haight 
was  to  be  entitled  to  keep  back  sufficient  to  indemnify  him  for 
any  moneys  he  should  be  compelled  to  pay  to  procure  good  title 


440        CASES  IN  THE  SUPEEME  COURT. 

Pepper  V.  Haight. 

to  the  disputed  part.  Vv^here  a  covenant  only  goes  to  part  of 
the  consideration  on  both  sides,  and  a  breach  of  the  covenant 
may  be  paid  for  in  damages,  it  is  an  independent  covenant,  and 
an  action  may  be  maintained  without  averring  performance. 
{Grant  v.  Johnson,  5  Barb.  161.)  Where  mutual  covenants 
go  to  the  whole  consideration  on  both  sides,  they  are  mutual 
conditions,  the  one  precedent  to  the  other ;  l>ut  when  the  cove- 
nants go  to  only  a  part  of  the  consideration,  then  a  remedy  lies 
on  the  covenant,  to  recover  damages  for  a  breach  of  it,  but  it  is 
not  a  condition  precedent. 

If  the  defendants  were  entitled  to  have  any  thing  deducted 
from  the  amount  due  on  the  mortgage,  it  would  only  be  the  value 
of  that  part  of  the  premises  in  possession  of  Ellsworth.  It  has 
been  before  shown,  that  Phillips  had  been  in  possession  of  all 
the  premises  up  to  the  road  a  a,  before  the  deed  to  Ellsworth  from 
I>ye  covering  the  house,  barn  and  well  south  of  that  road.  That 
deed  was  certainly  void  if  the  one  from  Phillips  to  the  defendants 
was,  and  for  the  same  reasons.  The  contract  only  recites  that 
part  which  was  in  possession  of  Ellsworth  as  the  disputed  land, 
and  cannot  be  construed  to  include  any  other  part.  The  defend- 
ants have  never  been  lawfully  evicted  from  any  part  south  of  the 
road  a  a.  It  is  true  that  Ellsworth,  the  father-in-law  of  Haight, 
testifies  that  he  commenced  an  action  in  the  supreme  court 
against  Haight  to  recover  the  one  acre  on  which  the  buildings 
were ;  that  there  was  no  legal  evidence  of  any  action  having 
been  commenced ;  and  Haight  never  gave  any  notice  to  Phillips 
that  such  action  had  been  commenced,  but  proceeded  on  his  own 
responsibility  and  risk  to  pay  Ellsworth  for  his  pretended  title, 
without  at  all  consulting  Phillips.  The  evidence,  so  far  from 
establishing  any  title  in  Ellsworth,  under  the  deed  from  Dye, 
showed  that  deed  to  have  been  entirely  void  at  the  time  of  its 
execution,  and  that  Ellsworth  would  not  have  been  entitled  to 
recover  against  Haight  in  the  action  which  he  brought  against 
him.  Haight  therefore  settled  that  action  and  paid  the  money 
in  his  own  wrong.  He  had  no  right  to  judge  of  the  sufficiency 
of  Ellsworth's  title.  He  should  have  defended  the  action,  or 
given  notice  to  Phillips  or  his  heirs,  to  defend.     He  did  neither 


"WASHINGTON— JANUARY,  1855.       .  441 

Hall  V.  Fisher. 

but  quietly  submitted  to.  the  terms  imposed  by  Ellsworth,  and 
the  probability  is  that  it  was  a  contrivance  between  Haight  and 
his  father-in-law  to  have  this  claim  set  up  by  Ellsworth  and 
allowed  by  Haight  for  the  purpose  of  swallowing  the  amount 
due  on  the  mortgage.  I  do  not  say  that  the  judge  so  found  the 
fact,  but  I  think  he  would  have  been  warranted  in  so  doing,  from 
all  the  evidence.  Haight  went  into  possession  of  the  mortgaged 
premises  at  the  time  of  the  execution  of  the  mortgage,  and  has 
remained  in  possession  ever  since,  except  as  to  the  part  north 
of  the  road  a  a,  of  which  he  has  never  been  in  possession.  The 
"\  alue  of  that  part,  however,  has  been  deducted  from  the  amount 
of  the  mortjrase. 

On  the  whole,  I  am  of  the  opinion  that  if  the  contract  is  to 
be  deemed  legal,  the  action  was  properly  disposed  of  at  the  cir- 
cuit, and  that  the  judgment  should  be  aflSrmed. 

Judgment  affirmed. 

[Frankly  General  Term,  September  4,  1854.  Hand,  Cody,  C.  L.  Allen 
vnA  James,  Justices.] 


Eliphalet  Hall,  who  sues  in  his  own  right  as  well  as  admin- 
istrator &.C.  of  Ephraim  Hall  deceased,  vs.  Austin  Fisher 
and  others,  executors  &.C-  of  Henry  Fisher  deceased. 

A  complaint  filed  by  a  plaintiff  in  his  own  right  as  well  as  in  the  character  of 
administrator  of  E.  H.,  against  the  defendants  as  the  executors  of  H.  F.,  alleged 
that  the  plaintiff  and  his  intestate  E.  H.  were  in  the  lifetime  of  the  latter,  ten- 
ants in  common  owning  one  undivided  quarter  with  H.  F.  in  his  lifetime,  who 
owned  three  quarters,  of  a  lot  of  land,  and  iron  ore  bed,  &c.  And  the  plain- 
tiff claimed  that  the  defendants  should  account  to  him  in  person  and  as 
administrator  of  E.  H.,  for  their  share  of  the  rents  and  profits,  avails  and  in- 
come of  the  ore  bed  &c.,  and  for  their  share  of  the  ore  dug  and  raised  by  H.  F., 
and  for  their  share  of  the  moneys  had  and  received  by  H.  F.,  including  what 
he  ought  to  have  received  for  the  use,  rents  and  profits  of  the  improvement.-*, 
buildings,  fixtures  and  erections  of  the  plaintiflT  and  E.  H.,  and  for  the  wear  and 
damage  of  the  same  &c.,  and  for  the  loss,  damage  and  injury  sustained  by  th© 

A^OL.  XX.  56 


442  .     CASES  JN  THE  SUPREME  COURT. 

Hall  V.  Fisher. 

plaintiff  and  E.  H.  by  reason  of  the  acts  done  1  y  H.  F.  while  in  the  exclusive 
possession,  &c.  Held,  on  demurrer,  that  there  was  an  imj)ropcr  joinder  of 
claims  in  the  complaint,  in  attempting  to  unite  the  rights  of  the  plaintiff  per- 
sonally with  those  in  his  representative  character ;  the  claims  being  inconsistent 
and  adverse. 

The  same  complaint,  in  addition  to  a  claim  for  an  account,  after  setting  out  the 
title  of  the  plaintiff  and  his  intestate,  to  one  quarter  of  the  lot  and  ore  bed,  and 
showing  large  and  valuable  erections  and  fixtures  made  by  them,  averred  that 
H.  F.,  contriving  and  intending  to  injure  and  defraud  the  plaintiff  and  E.  II., 
and/aZ5eZ?/j)rfic7<(ZtHgf  that  they  were  not  the  owners  of  one- fourth  part  of 
said  lot  and  ore  bed,  but  that  he  was  sole  owner  thereof,  procured  an  injunction, 
and  caused  the  same  to  be  served  on  the  plaintiff  and  E.  H.,  restraining  them 
from  digging  or  raising  any  iron  ore  on  said  lot  &c.,  and  by  means  of  such 
service  thereof  occasioned  all  the  damages  which  the  plaintiff  alleged  were 
sustained.  The  plaintiff  also  claimed  to  recover  damages  for  trespass  on 
houses,  erections  and  fixtures  which  the  plaintiff  and  E.  H.  erected,  at  an  ex- 
pense of  S5000,  and  for  their  share  of  the  expense  of  those  erections.  The 
complaint  also  alleged  that  II.  F.  diverted  to  his  own  use  a  quantity  of  ore  dug 
and  raised  by  the  plaintifi"  and  E.  H.  ;  and  that  he  received  S^0,000  profits, 
and  might  with  proper  management,  have  received  $20,000  more.  Held  that 
the  complaint  was  defective  in  joining  causes  of  action  arising  upon  contract, 
with  claims  of  damages  for  injuries  to  property  and  for  torts  and  causes  of 
■  action  arising  from  negligence,  with  a  claim  for  an  account  of  rents  and  profits 
of  real  estate. 

Held  also,  that  the  falsely  and  fraudulently  obtaining  an  injunction,  and  the  dam- 
ages occasioned  by  its  service,  were  not  a  matter  of  account,  and  formed  no 
ground  for  a  bill  in  equity  or  an  action  under  the  statute.    (1  R.  S.  750,  K)  9.) 

The  bond  given  by  the  party  obtaining  an  injunction  affords  an  ample  remedy 
for  any  damages  sustained  by  the  defendant,  and  to  an  action  upon  such  bond 
he  must  resort  for  indemnity 

An  action  for  malicious  prosecution  \¥ill  not  lie  until  the  final  termination  of  the 
suit;  and  tlie  complaint  must  allege  a  want  of  probable  cause,  by  averring  that 
the  suit  was  finally  determined  in  favor  of  the  defendant  therein. 


rillllS  was  an  appeal  from  an  order  made  at  a  special  term, 
X  allowing  a  demurrer  to  the  complaint.  Tlie  plaintiff  aver- 
red that  on,  and  for  a  long  time  previous  to  the  12th  of  June, 
J 845,  the  plaintiff  and  his  intestate  Avere  seised  and  possessed 
as  tenants  in  common  in  fee  simple,  in  their  own  right,  of  the 
one  equal  undivided  fourth  part  of  an  iron  ore  bed  on  lot  No. 
42  of  the  iron  ore  tract  in  the  county  of  Essex  and  state  of  New 
York,  together  with  all  the  privileges  appertaining  thereto,  and 
of  all  necessary  timber  and  utensils  on  the  lot,  necessary  to  use^ 


WAbHINGTO^"— JANUARY,  1855.  443 

Hall  V.  Fisher. 

'n  digging  and  carrying  away  the  ore.  That  Henry  Fisher,  the 
defendant's  intestate  was,  at  and  during  the  same  time,  the 
owner  and  possessor  of  the  remaining  three-fourths  of  the  said 
h:)t  and  the  ore  rights  and  privileges,  as  tenant  in  common  with 
the  plaintiff  and  his  intestate  ;  that  a  very  valuable  mine  or  bed 
of  iron  ore  was  situated  on  said  lot,  which  during  the  said  time 
was  worked  by  the  said  Halls  and  returned  to  them  for  their 
share  thereof  an  annual  value  of  $10,000  and  upwards.  That 
said  Halls,  previous  to  and  on  said  12th  day  of  June,  1845,  had 
expended  $10,000  in  opening  and  uncovering  the  bed  and  in 
working  it,  and  had  also  expended  $5000  and  upwards  in  erect- 
ing and  putting  up  shops,  dwelling  houses,  barns,  scales,  coal 
houses  and  various  other  erections  and  fixtures  for  their  neces- 
sary use  in  enjoying  and  availing  themselves  of  the  benefits, 
rights  and  privileges  of  the  said  lot.  The  complaint  further 
averred  that  the  said  Henry  Fisher,  on  the  said  12th  day  of 
June,  1845;  contriving  and  intending  to  injure  and  defraud  the 
said  Halls,  and  falsely  pretending  that  they  were  not  the  owners 
of  one-fourth  part  of  said  ore  and  said  rights  and  privileges,  but 
that  said  Fisher  was  the  sole  owner  thereof,  procured  and  caused 
to  be  served  on  the  said  Halls,  an  injunction  out  of  the  (then) 
court  of  chancery  of  the  state  of  New  York,  enjoining  and  com- 
manding the  said  Halls  and  their  agents  and  servants  to  desist 
and  refrain  from  digging  or  raising  any  iron  ore  on  said  lot  42, 
or  from  taking  and  carrying  away,  or  selling,  any  ore  raised  or 
dug  thereon  since  the  1st  day  of  May,  1845,  or  from  cutting  any 
timber,  or  collecting  any  claims  or  debts,  or  discharging  any,  on 
account  of  ore  dug  since  that  day.  That  at  the  time  of  the  ser- 
vice of  said  injunction  the  said  Halls  had  on  hand  on  and  neac 
said  lot  42,  one  thousand  tons  of  iron  ore,  of  the  value  of  $3000, 
which  they  had  raised  from  said  bed  between  the  1st  o£  Maj"^, 
1845,  and  the  issuing  and  service  of  said  injunction,  which  they 
were  entitled  to  use  and  sell,  but  which,  by  reason  of  said  injunc- 
tion they  were  wholly  prohibited  from  selling  or  using,  and  the 
same  was  taken  possession  of  by  said  Fisher,  and  by  him  con- 
verted to  his  own  use,  or  by  his  negligence  wasted  and  destroyed, 
and  said  Halls  never  recovered  possession  ot  the  same.     That 


444  CASES  IN  THE  SUPKEME  COURT. 

Hall  V.  Fisher. 

there  were  divers  debts  due  the  said  Halls,  for  ore  raised,  which 
they  were  prevented  by  said  injunction  from  collectintr,  whereby 
many  of  them  became  bad  and  uncollectable,  and  entirely  lost ; 
especially  a  debt  against  one  Chester  Stephens  of  $300,  for  iron 
ore  dug  by  him,  who,  while  said  injunction  was  pending,  became 
insolvent  and  the  said  debt  became  lost.  That  said  Halls  were 
also  deprived  of  the  privilege  of  digging  ore  and  of  the  benefit 
of  their  expenditure  and  labor  in  uncovering  and  opening  the 
said  ore  bed,  and  deprived  of  the  use  and  benefit  of  their  build- 
ings, erections  and  fixtures,  and  the  said  Henry  Fisher  took  the 
sole  and  exclusive  possession  of  the  said  ore  bed  with  the  appur- 
tenances, and  of  all  the  rights  and  privileges  of  the  said  Halls, 
and  of  the  buildings  and  erections,  and  of  the  ore  on  hand 
difg  and  raised  since  the  said  1st  day  of  Ma}',  1845,  and  wholly 
excluded  the  said  Halls  therefrom,  and  so  held  them  exclusively 
till  the  13th  of  May,  1847,  at  which  time  the  said  Henry  Fisher 
died,  having  first  made  and  published  his  last  will  and  testament, 
and  appointed  the  defendants  his  executors,  which  will  was,  after 
his  death,  proved,  and  letters  testamentary  granted  to  the  de- 
fendants as  executors,  by  the  surrogate  of  the  county  of  Essex, 
on  the  3d  of  June,  1847.  The  complaint  further  averred,  that 
while  said  Henry  Fisher  held  and  retained  the  sole  use  and  occu- 
pation as  aforesaid  he  received  to  his  own  use  the  whole  of  the 
profits  and  income  of  the  said  bed  &».,  amounting  to  the  sum  of 
S20,000,  one-fourth  of  which  belonged  to  the  said  Halls,  for 
which  the  defendants  ought  to  account ;  and  that  said  Henry 
injured  and  damaged  the  improvements  and  buildings  (fcc.  erect- 
ed by  said  Halls,  by  carelessness,  negligence  and  improper 
usage,  to  the  value  of  $1000,  and  while  he  used  and  held  the 
same  might  have  realized,  by  proper  management  thereof,  a  fur- 
ther sum  of  $20,000,  to  one-fourth  of  Avhich  said  Halls  would 
have  been  entitled ;  all  of  which  was  lost  by  reason  of  the  im- 
proper management  of  the  said  Henry  and  his  agents,  and 
whereby  the  said  Halls,  on  regaining  possession  of  said  ore  beds, 
Avere  put  to  the  expense  of  S500  in  replacing  the  same  on  its 
former  footing,  and  lost  other  $500  by  the  hindrance  and  delay 
occasioned  by  the  necessary  repairs ;  for  all  which  the  defend- 


WASHINGTON— JANUARY,  1855.  445 

Hall  V.  Fisher. 

ants  ought  to  account.  The  complaint  further  averred,  that 
since  the  death  of  the  said  Henry  Fisher  the  said  Ephraim  JIall 
died  intestate,  and  letters  of  administration  on  his  estate  were 
granted  by  the  county  judge  of  Essex  county  to  the  plaintiff. 
That  after  the  death  of  Fisher  and  before  the  death  of  the  said 
Ephraim  Hall,  the  said  injunction  was  dissolved,  and  possession 
of  the  said  lot  and  beds  and  all  their  rights  and  privileges  re- 
stored to  the  said  Halls.  The  plaintiff  claimed  that  by  occasion 
of  the  premises  the  said  Henry  Fisher  became  liable  to  account 
to  the  Halls  for  their  share  of  the  use,  rents  and  profits  of  the 
ore  beds,  and  for  their  share  of  the  moneys  received  by  him,  and 
for  the  other  profits  which  he  might  have  received  by  ]jroper 
management,  and  for  the  use  of  the  buildings,  erections  and  fix- 
tures, and  their  wear  and  damage  as  aforesaid,  and  for  the  inju- 
ries occasioned  thereto,  and  for  the  ore  dug  and  raised  by  said 
Halls  between  said  1st  day  of  May,  1845,  and  the  service  of  the 
injunction,  and  for  all  losses,  damages  and  injuries  by  the  said 
Halls  sustained ;  and  that  the  defendants  were  lia])le  as  execu 
tors  <fcc.  to  account  to  the  plaintiff  in  his  own  right  and  as  ad- 
ministrator of  the  said  Ephraim,  jointl}'^,  for  such  sums  as  might 
be  proved  due  from  said  estate  of  said  Henry  upon  such  account- 
ing, on  occasion  of  the  premises.  And  they  prayed  that  an  ac- 
count might  be  decreed  on  these  principles. 

The  defendant  Calvin  Fisher  demurred  to  the  complaint,  for 
the  following  causes :  ,1.  That  there  was  a  defect  of  parties 
plaintiff  to  the  action.  2.  That  several  causes  of  action  had 
been  improperly  united  in  the  same  complaint.  3.  That  the 
plaintiff  had  improperly  in  his  complaint  alleged  causes  of  action 
existing  in  his  own  right,  Avith  claims  made  by  him  in  the 
capacity  of  administrator,  &c.  4.  That  the  plaintiff  had  also 
improperly  united  in  his  complaint  alleged  causes  of  action  aris- 
ing upon  contract  express  or  implied,  with  claims  of  damages 
for  injuries  Avith  or  without  force,  to  property.  5.  That  the 
plaintiff  had  improperly  united  alleged  causes  of  action  in  his 
complaint  arising  from  negligence,  with  claims  for  an  account 
for  rents  and  profits  of  real  property.  6.  That  the  causes  of 
action  united  in  the  complaint  did  not  all  belong  to  one  class  and 


446  CASES  IN  THE  SUPREME  COURT. 

Hall  V.  Fisher. 

were  not  separately  stated.     7.  That  the  complaint  did  not  state 
facts  sufficient  to  constitute  a  cause  of  action. 

The  court,  at  special  term,  ordered  judgment  for  the  defend- 
ants, on  the  demurrer,  and  the  plaintiff  appealed  to  the  general 
term. 

Kellogg  ^^  Hale  and  G.  A.  Simmons,  for  the  plaintiff. 

B.  i^"  A.  Pond,  for  the  defendants. 

By  the  Court,  C.  L.  Allen,  J.  I  am  inclined  to  think 
there  is  an  improper  joinder  of  claims,  by  attempting  to  unite 
the  rights  of  the  plaintiff  personally  with  those  in  his  repre- 
sentative character  as  administrator  of  Ephraim  Hall.  The  two 
Halls,  as  charged  in  the  complaint,  were  tenants  in  common 
owning  one  quarter,  with  the  defendants'  testator,  who  owned 
three-fourths,  of  the  lot  and  the  ore  bed.  The  claim  is  that  the 
defendants  account  to  the  plaintiff  in  person  and  as  such  admin- 
istrator, for  their  share  of  the  rents  and  profits,  avails  and  in- 
come of  the  ore  bed,  rights  and  privileges  while  their  testator 
held  the  exclusive  possession  thereof,  and  for  their  share  of  the 
ore  dug  and  raised  by  said  Henry  from  the  land  during  that 
time,  and  for  their  share  af  the  moneys  had  and  received,  in- 
cluding what  said  Henry  ought  to  have  received  for  the  use, 
rents  and  profits  of  the  improvements,  buildings,  fixtures  and 
erections  of  the  said  Halls,  and  for  the  wear  and  damage  of  the 
same,  and  for  the  injury  and  obstructions  to  the  use  of  said  ore 
bed,  and  for  the  ore  so  dug  and  raised  by  the  Halls  between  the 
1st  of  May,  1845,  and  the  issuing  and  service  of  the  injunction, 
and  for  the  debts  which  the  Plalls  lost,  and  for  all  and  singular 
the  loss,  damage  and  injury  which  the  said  Halls  sustained  b^ 
occasion  of  the  premises,  of  every  nature  soever.  The  amount 
due  to  each  tenant  in  common  from  his  co-tenant,  is  a  several 
debt  to  himself  alone,  (4  Paige,  363,)  and  not  to  the  tenants  or 
a  portion  oi  thexa  jointly.  The  rights  and  claims  attempted  to 
be  united  are  inconsistent  and  adverse.  (^Alston  v.  Jones,  3 
Barb.   Ch.  R.  397.)     But  the  plaintiff  alleges  that  this  is  an 


WASHINGTON— JANUARY,  1855.  447 

Hall  V.  Fisher. 

action  for  an  accounting,  and  that  all  parties  interested  should 
be  made  parties  to  the  suit,  so  that  there  need  to  be  but  one  ac- 
counting. If  this  be  so,  then  the  causes  of  action  or  claims 
should  be  separately  stated.  How  else  can  the  defendant,  if  he 
has  a  defense  of  a  different  character  against  each  co-ten- 
ant, avail  himself  of  such  defenses?  He  might  in  this  case 
hnvc  one  defense  against  the  plaintiff  as  to  his  personal  claim,  and 
another  defense  as  to  the  intestate  whose  rights  he  claims  to 
represent  as  administrator.  The  statement  of  the  causes  should 
have  been  separate  and  distinct.  {Code,  §167,  sub.  7.  4: How. 
226.  5  id.  171, 177.  8  id.  177.  Brad^  ^  Ellsworth  v.  Lock- 
wood,  MS.)  •   . 

But  however  this  may  be,  I  am  of  opinion  that  several  causes 
of  action  have  been  improperly  united  in  the  complaint.  The 
plaintiff  claims  that  the- action  is  for  an  accounting,  against  a 
co-tenant  in  common,  for  receiving  more  than  his  proportion  of 
the  common  property.  But  it  is  more.  The  complaint,  after 
setting  out  the  title  of  the  plaintiff  and  his  intestate  to  one 
quarter  of  lot  42  and  the  ore  bed  thereon,  and  showing  large  and 
valuable  erections  and  fixtures  made  by  the  Halls  for  their  ben- 
efit and  to  enable  them  to  enjoy  and  work  the  property,  avers 
that  on  or  about  the  12th  day  of  June,  1848,  the  said  Henry 
Fisher,  contriving  and  intending  to  injure  and  defraud  the  said 
Halls,  am\  falsely  pretending-  that  the  said  Halls  were  not  the 
owners  of  a  quarter  part  of  said  ore  and  lot,  but  that  he  Avas  sole 
owner  thereof,  procured  an  injunction  in  the  manner  stated  in 
the  complaint,  and  by  means  of  its  service  occasioned  all  the 
damages  vfhlch  the  plai?itiff  alleges  were  sustained.  This  is 
not  matter  of  account,  and  no  bill  in  equity  or  an  action  under 
1  R.  S.  750,  §  9,  could  be  sustained  upon  it.  The  falsely  and 
fraudulently  obtaining  this  process,  and  the  consequences  arising 
out  of  its  service,  seem  to  form  the  principal  part  of  the  com- 
plaint. They  are  the  gravamen  of  the  action.  The  action  of 
account  should  be  founded  upon  a  relation  in  the  nature  of  a 
trust.  (3  Hill,  60.)  The  bond  required  to  be  given,  and  which 
was  given  at  the  time  of  obtaining  the-  injunction,  afforded,  as  it 
was  designed  to  do.  an  ample  remedy  for  these  damages,  and  to 


448  CASES  m  the  supreme  court. 

Hall  f.  Fi«her. 

an  action  upon  that  the  plaintiff  should  have  resorted.  If  tl.'ia 
were  to  be  called  partly  an  action  for  a  malicious  prosecution — 
and  it  would  seem  to  be  so.  from  the  nature  of  the  complaint — 
then  it  would  not  lie  until  the  final  termination  of  the  suit. 
The  complaint  does  not  allege  that  the  suit  has  terminated,  but 
only  that  the  injunction  was  dissolved.  It  should  allege  want 
of  probable  cause,  by  averring  that  the  suit  was  finally  deter- 
mined in  favor  of  the  defendant  therein.  A  claim  founded  in 
tort  is  also  united  in  the  complaint,  for  diverting  to  his  own  use 
by  the  said  Henry  Fisher  1000  tons  of  ore  dug  and  raised  by 
the  Halls  before  the  service  of  the  injunction. 

Another  claim  is  for  trespasaion  houses,  erections  and  fixtures 
which  the  Halls  erected  at  an  expense  of  $5000,  before  the  ser- 
vice of  the  injunction,  and  the  claim  for  their  share  of  this  ex- 
pense is  also  added.  It  is  not  averred  on  what  land,  or  where, 
these  erections  were  made ;  but  the  defendant's  intestate  is 
charged  with  wrongfully  taking  possession  of,  and  using  and  in- 
juring them  by  his  carelessness  and  negligence,  as  well  as  the 
ore  bed. 

The  plaintiff  also  claims  that  said  Henry  Fisher  received 
$20,000  profits,  and  might  with  proper  management  have  re- 
ceived .$20,000  more.  Now  a  tenant  in  common  is  not  liable  for 
negligence  or  misuse  of  the  common  property,  nor  for  what  he 
might  have  made  by  diligence,  unless  appointed  bailiff,  <fec. 
{Henderson  v.  Eason,  9  Eng.  Law  and  Eq.  Rep.  337.) 

It  is  said  by  the  plaintiff's  counsel  that  there  is  but  one  cause 
of  action,  and  that  all  the  claims  are  but  parts  of  one  and  the 
same  establishment,  and  incidents  of  the  tenancy  in  common  and 
of  the  mining  business.  But  all  these  are  promiscuously  stated 
and  jumbled  together,  and  they  do  not  all  belong  to  one  of  the 
classes  mentioned  in  the  several  subdivisions  of  section  167. 
It  may  be  questionable,  since  the  decision  in  Tripp  v.  Riley, 
(15  Barb.  333,)  Avhether  Henry  Fisher  could  be  chargeable  and 
liable  to  account  in  this  action,  unless  it  was  averred  and  showri 
that  he  had  received  more  than  his  share  (three-fourths)  of  the 
ore  bed.     But  it  is  not  necessary  to  pass  upon  that  point,  here. 

Without  further  examination  I  can  onl}''  say  that  I  fully  con- 


SCHENECTAPY— MAY,  1855.  449 


McMillan  v.  Saratoga  and  Washington  Rail  Road  Co. 

cur-with  the  learned  justice  who  delivered  the  opinion  at  special 
term,  and  in  the  views  there  expressed.  The  order  must  be 
affirmed,  with  $10  costs. 

[Washington  G-enehal  Term,  January  1,  1855.     Hand,  Cody,  C.  L.  Allen 
and  James,  Justices.] 


McMillan,  adm'x,  &c.  vs.  The  Saratoga  and  Washing- 
ton Rail  Road  Company. 

Where,  in  an  action  against  a  rail  road  companj',  the  complaint,  after  stating 
that  the  defendants  were  an  organized  company  and  the  owners  of  the  road, 
and  were  running  it,  averred  that  on,  &c.  while  they  were  so  running  the  road, 
the  plaintiff's  intestate  was  in  the  employ  of  the  defendants,  as  an  engineer 
upon  their  locomotive,  while  it  was  in  their  use  and  service :  Held  that  this 
was  a  sufficient  allegation  to  show  that  the  relation  of  master  and  servant  ex- 
isted between  the  parties. 

But  no  special  contract  bet\\een  the  principal  and  agent  is  to  be  inferred  from 
such  an  allegation. 

A  servant,  to  be  entitled  to  recover  of  his  principal  for  an  injury  happening  to 
him  in  the  course  of  his  service,  through  defects  in  the  machinery  &c.  used  in 
the  discharge  of  his  duties,  must  prove  actual  notice  to  his  principal  of  the 
detects.  And  in  order  to  be  able  to  prove  notice,  he  must  allege  it  in  his 
complaint. 

Thus  where  a  complaint  alleged  that  W.  S.  M.,  the  plaintiff's  intestate,  was  in 
the  defendants'  employ  as  engineer  upon  a  locomotive  used  and  running  upon 
their  rail  road ;  that  it  was  the  duty  of  the  defendants  to  provide  a  good,  safe  and 
secure  locomotive  &c.,  and  a  good,  safe  and  secure  track,  and  to  keep  the  same 
in  good  repair,  and  to  build,  maintain  and  keep  in  good  repair  all  necessary 
bridges,  fences  and  cattle-guards,  but  that  they,  not  regarding  their  duty, 
wrongfully  and  negligently  provided,  used  and  suffered  to  be  used,  an  unsafe, 
defective  and  insecure  locomotive,  and  failed  and  refused  to  provide  a  good, 
safe  and  secure  track  and  road,  or  to  keep  the  road  in  good  repair,  and  neg- 
lected to  build,  maintain  and  keep  in  good  repair  all  necessary  bridges,  fences 
and  cattle-guards ;  that  through  a  defect  in  the  fence  which  it  was  the  duty 
of  the  defendants  to  maintain  and  keep  in  good  repair,  a  horse  got  upon  the 
track  from  an  adjoining  lot,  without  any  fault  of  W.  S.  M.,  and  in  conse- 
quence of  the  defendants'  neglect  to  provide  proper  cattle-guards,  ran  over 
the  road  until  he  came  to  a  bridge,  where  the  locomotive  struck  the  hoi-se ; 
find  the  locomotive  was  thrown  off  the  track  and  W.  S.  M.  was  killed ;  U  was 

Vol.  XX.  57 


450  CASES  IN  TDE  SUPREME  COURT. 

!Mc]\Iillan  v.  Saratoga  and  Washington  Rail  Road  Co. 

held,  on  demurrer,  that  the  complaint  was  defective,  in  not  aveninr  actual 
notice  to  the  defendants,  of  the  defects  occasioning  the  injury,  or  some  of 
them. 

It  is  the  duty  of  afi  engineer,  employed  in  running  a  locomotive  upon  a  rail 
road,  and  it  is  confided  to  him  by  his  employers,  to  guard  against  all  accidents 
liable  to  happen  by  the  escape  of  horses  or  other  animals,  upon  the  track, 
through  a  defect  of  fences,  or  otherwise.  Hence  he  is  bound  to  make  known 
to  the  rail  road  company  any  defects  of  that  nature  which  may  exist.  So 
in  respect  to  any  defects  in  the  locomotive.  And  for  not  making  them  known 
he  is  responsible  to  the  public  as  well  as  the  company. 

lie  may  require  special  indemnity  against  all  risks,  or  he  may  give  notice  to  the 
company  and  throw  the  risk  upon  them. 

THIS  was  an  appeal  from  an  order  made  at  a  special  term, 
sustaining  a  demurrer  to  the  complaint.  That  pleading 
averred  that  the  defendants  Avere,  at  the  time  of  the  injury  com- 
plained of,  a  corporation  duly  organized,  «fcc.  That  they  were, 
at  the  said  time,  the  owners  and  operators  of  a  rail  road,  run- 
ning from  Saratoga  Springs  to  Whitehall,  and  that  they  ran 
upon  said  road  a  certain  locomotive.  That  on  the  2d  day  of 
December,  1853,  W.  C.  McMillan,  the  plaintiff's  intestnte,  was 
.n  the  defendants'  employ  as  engineer,  upon  said  locomotive, 
"  and  it  then  and  there  became  and  was  the  duty  of  the  defend- 
ants to  provide  a  good,  safe  and  secure  locomotive,  with  good, 
safe  and  secure  machinery,  and  to  provide  a  good,  safe  and 
secure  track,"  and  to  keep  the  same  in  good  repair,  and  to  build, 
maintain  and  keep  in  good  repair  all  necessary  bridges,  and  also 
all  fences  on  both  sides  of  their  road,  and  sufficient  cattle-guards, 
at  all  road  and  farm  crossings.  The  complaint  then  averre<l 
that  the  defendants,  not  regarding  their  said  duty,  '■'■  wrongful 
ly  conducted  themselves  so  carelessly,  negligently  and  un- 
skillfuUy  in  that  behalf,  that  by  and  through  such  wrongful  care 
lessness,  nejrlifjence  and  unskillfulness  and  default  of  the  de- 
fendants  they  provided,  used  atid  suffered  to  be  used,  an  unsafe, 
defective  and  insecure  locomotive  on  the  said  road,  and  wholly 
failed  and  refused  to  providx;  a  good,  safe  and  secure  track  and 
road,  and  neglected  to  keep  their  said  road  in  good  repair,  and 
neglected  to  build,  maintain  aud  keep  in  good  repair  all  neces 
sary  bridges,  and  also  the  fences,  on  both  sides  of  the  road 


SCHENECTADY— MAY,   1855.  451 

McMillan  r.  Saratoga  and  Washington  Rail  Road  Co. 

and  neglected  to  maintain   cattle-guards  at  all  road  and  farm 
crossings. 

The  complaint  then  further  averred  that  on  tlie  2d  of  Decem- 
ber, 1853,  while  the  said  locomotive  was  being  run  by  the  plain- 
tiff's intestate  in  the  capacity  of  engineer  for  the  defend- 
ants, and  in  their  employ,  a  horse  that  was  in  one  of  the  lots 
contiguous  to  and  adjoining  said  rail  road,  through  and  in  con- 
sequence of  a  defect  in  the  fence,  between  said  lot  and  the  rail 
road,  which  it  was  the  duty  of  the  defendants  to  maintain  ana 
keep  in  good  repair,  escaped  into  and  upion  the  track  of  tht 
road,  and  while  on  the  road,  without  any  fault  of  the  said  W.  S. 
McMillan  as  such  engineer  or  otherwise,  w'as  run  down  by  said 
lofotliotive  upon  which  the  said  W.  S.  McMillan  then  was ;  anr 
that  in  consequence  of  the  neglect  of  the  said  defendants  to  pro- 
vide proper  cattle-guards  upon  and  over  said  road  at  the  placi 
aforesaid,  the  said  horse  was  enabled  to  run  over  said  road,  until  ho 
reached  a  bridge  over  which  the  road  passed,  where  said  loco- 
motive struck  said  horse.  That  in  consequence  of  said  defend- 
ants neglecting  to  maintain  and  keep  said  bridge  in  gooi 
repair,  the  same  was  unable  to  withstand  the  shock  occasions 
by  the  collision,  and  the  horse  and  locomotive  were  thrown  oft' 
the  track  on  said  bridge  and  the  locomotive  eritirely  destroyed 
that  the  cow-catcher  of  the  locomotive  was  out  of  repair,  a 
were  the  track  and  road  also,  owing  to  the  negligence  of  sai 
defendants,  and  that  the  locomotive  was  precipitated  into  the 
canal,  and  in  falling  struck  the  plaintiff"'s  intestate  and  killed 
him.  The  complaint  then  averred  that  the  plaintiff"  was  the 
wife  of  the  engineer  and  had  been  duly  constituted  administra- 
trix, since  his  death,  and  brought  her  action  under  the  statute, 
to  recover  her  damages. 

The  defendants  demurred  to  the  complaint,  and  stated  several 
grounds  of  demurrer,  which  are  noticed,  so  far  as  is  necessary, 
in  the  opinion  of  the  court. 

A.  Pond  and  C.  &'.  Lester,  for  the  plaintiff". 

W.  L   F.  Warren,  for  the  Jbfendants. 


452  CASES  IN  THE  SUPREME  COURT. 

McMillan  v.  Saratoga  and  Washington  Rail  Road  Co. 

Bj/  the  Court,  C.  L.  Allen,  J.  The  first  ground  upon 
which  the  demurrer  in  this  case  is  predicated  is,  that  the  com- 
plaint does  not  set  forth  facts  sufficient  to  constitute  a  cause  of 
action.  The  complaint,  after  stating  that  the  defendants  were  an 
organized  company  and  the  owners  of  the  road,  and  were  run- 
ning it,  avers  that  on  the  2d  day  of  December,  1853,  while  they 
were  so  running  the  road,  the  plaintiff's  intestate  was  in  the 
employ  of  the  defendants  as  an  engineer  upon  their  locomotive, 
wldle  it  vjas  in  their  use  and  service  on  that  day.  This  is  a 
sufficient  allegation  to  show  that  the  relation  of  master  and  ser- 
vant existed  between  the  parties.  At  all  events  it  shows  that 
McMillan  was  lawfully  on  the  road  on  that  occasion,  at  the  re- 
quest of  the  defendants,  and  as  their  servant  actually  engaged 
in  conducting  the  locomotive  at  the  time  of  the  happening  of  the 
injury  complained  of.  The  duty  is  created  by  law,  and  the  gen- 
eral allegation,  I  think,  is  sufficient.  It  maybe  said,  it  is  true, 
that  this  is  the  rule  as  between  the  company  and  third  persons, 
but  that  a  different  rule  prevails  as  between  master" and  servant, 
where  particular  accidents  or  mishaps  may  be  guarded  against 
by  special  contract.  {Story  on  Agency,  453,  e.  3  Seld.  498.) 
But  in  the  view  I  have  taken  of  another  point  it  will  not  be 
necessary  further  to  consider  this  position,  at  the  present  time. 
No  special  contract,  however,  between  the  principal  and  agent 
is  to  be  inferred  from  such  an  allegation. 

The  great  question  is,  whether  the  plaintiff  should  have  aver- 
red actual  notice  to  the  defendan|;s,  of  the  defects  complained 
of,  or  some  of  them.  In  Keegan  v:  The  Western  Rail  Road 
Corporation,  (4  iSeld.  175,)  Ch.  J.  Ruggles,  in  delivering  the 
opinion  of  the  court  of  appeals,  says  that  "  the  cases  in  which 
it  has  been  held  that  a  principal  is  not  liable  to  one  agent  or 
servant  for  an  injury  sustained  by  him  in  consequence  of  the 
misfeasance  or  negligence  of  another  agent  or  servant  of  the 
same  principal  while  engaged  in  the  same  general  business, 
were  not  applicable  to  the  case  then  under  consideration.  That 
they  were  only  applicable  where  the  injury  complained  of  hap- 
pened without  any  actual  fault  or  misconduct  of  the  company,, 
either  in  the  act  which  caused  |he  injury  or  in  the  selection  oi 


SCHENECTADY— MAY,  1855.  4.53 


McMillan  v.  Saratoga  and  Washington  Rail  Road  Co. 

employaient  of  the  agent  by  whose  fault  it  did  happen.  That 
whenever  the  injury  results  from  the  actual  negligence  or  mis- 
feasance of  the  principal  he  is  liable,  as  well  in  the  case  of  one 
of  his  servants  as  in  any  other."  He  further  remarks  that  in 
the  case  of  third  persons,  the  actual  fault  of  the  agent  is  im- 
puted to  the  principal  on  grounds  of  public  policy,  but  that 
it  was  unnecessary  to  dwell  upon  the  reasons,  because  the  ref- 
eree had  found,  as  matter  of  fact,  that  the  injury  resulted 
directly  from  the  negligence  or  misconduct  of  the  defendants 
themselves,  in  continuing  to  use  the  engine  having  a  defective 
and  dangerous  boiler,  aftei'  notice  of  its  dangerous  condition. 
It  will  be  perceived  that  the  court  lay  great  stress,  and  seem 
to  base  their  opinion,  upon  the  fact  found,  that  notice  had  been 
given  to  the  company  of  the  defects  in  the  boiler.  The  referee 
reported  that  during  the  two  months  preceding  the  explosion 
the  engineer  of  the  locomotive  had  reported  to  the  defendants, 
on  five  or  six  different  occasions,  the  defective  condition  of  the 
boiler,  and  that  those  defects  w6re  entered  on  the  books  of 
the  defendants  kept  for  that  purpose.  Upon  this  state  of  facts, 
it  was  very  properly  urged  and  insisted,  upon  the  argument, 
that  the  defendants  having  persisted  in  running  the  engine  under 
circumstances  showing  an  utter  blindness  to  every  thing  except 
their  own  pepuniary  profit,  were  guilty  not  only  of  negligence 
but  intentional  wrong  ;  it  was  an  act  dangerous  to  human  life, 
and  knowingly  done.  Knoiuledge  was  considered  one  of  tlie 
essential  elements  necessary  to  maintain  the  action.  And  whj 
has  this  difference  in  the  rule  between  strangers  and  servants 
obtained,  from  the  earliest  cases  down?  The  reason,  says 
Story,  in  his  treatise  on  Agency,  h  453,  d.  and  e.,  is  that  "  the 
mere  relation  of  master  and  servant,  or  principal  and  agent, 
creates  no  contract,  and  therefore  no  duty  on  the  part  of  the 
principal.  In  such  cases  the  servant  takes  upon  himself  the 
hazard  of  an  injury  which  may  arise  in  the  course  of  his  busi- 
ness or  employment.  The  master  is  no  doubt  bound  to  provide 
for  the  safety  of  his  servant  in  the  course  of  his  employment, 
to  the  best  of  his  judgment,  information  and  belief  But  the 
servant  is  not  bound  to  risk  his   safety  in   the  service  of  his 


454  CASES  IN  THE  SUPREME  COURT. 

McMillan  v.  Saratoga  and  Washington  Rail  Road  Co. 

master,  and  may  if  he  thinks  fit,  decline  any  service  in  which 
he  may  have  reason  to  apprehend  injury  t )  himself.  And  in 
most  of  the  cases  in  which  danger  mav  be  incurred,  if  not  in 
all,  he  is- just  as  likely  to  be  acquainted  with  the  probability 
and  extent  of  it,  as  the  master." 

These  remarks  I  consider  as  peculiarly  appropriate  to  the 
present  case.  The  phiintiff's  intestate  was  the  engineer  upon 
the  very  locomotive  which  contained  the  defects  complained  of. 
It  was  his  duty  to  have  made  known  the  defects  to  the  compa- 
ny, as  in  the  case  of  Kcegau.  v.  The  Western  Rail  Road  Cor- 
poration. He  Avas  responsible  as  well  to  the  public  as  the 
company,  for  not  making  them  knoAvn.  It  was  his  duty,  and  it 
was  confidgd  to  him  by  his  employers,  to  guard  against  all  acci- 
dents liable  to  happen  by  the  escape  of  horses  or  other  animals 
upon  the  track,  through  the  defect  of  fences  or  otherwise.  He 
would  be  more  likely  to  know  of  occasional  defects  in  fences 
or  cattle-guards  or  bridges  than  the  company  or  their  officers 
elsewhere  located.  He  was  bound  at  all  times  to  exercise  all 
diligence  and  caution  against  the  happening  of  accidents,  and 
to  thus  protect  himself  as  Avell  as  his  passengers  and  the  prop- 
erty intrusted  to  his  care.  He  had  the  knowledge,  or  the 
means  of  knowledge,  within  his  own  poAver.  He  might  have 
required  special  indemnity  against  all  risks,  or  he  might  have 
given  notice  to  the  company  and  have  throAvn  the  risk  upon 
them.  (3  Mees.  4*  Wels.  1.  Story  on  Agency.,  451  </,  e- 
Parsons  on  Contracts.  528.)  "  The  master,"  says  the  latter, 
"is  not  responsible  for  an  accident  happening  in  the  course  of 
his  service,  unless  the  master  knew  that  it  exposed  the  serA'ant 
to  peculiar  danger,  and  the  servant  did  not."  {And  see  Add  on 
Cont.  744.) 

The  servant,  then,  to  be  entitled  to  recover,  as  seems  to  l)e 
established  by  all  the  cases,  must  prove  actual  notice  to  the 
principal  of  the  defects  complained  of  as  causing  the  injury, 
or  some  of  them.  And  in  order  to  be  able  to  prove  notice,  he 
must  allege  it  in  his  complaint.  It  is  argued  that  no  notice 
was  averred  in  the  case  of  Keegan.  But  the  evidence  was  re- 
ceived by  the  referee  Avithout  objection.     And  the  question  did 


.SCriENECTAD  5   -MAY,  1 655.  4  55 

Underliill  i.  Saratoga  and  Washington  Rail  Road  Co. 

, I '. 

not  arise  in  the  court  of  appeals,  whether  it  was  necessary  to 
aver  that  fact  or  not.  If  the  objection  had  been  taken  at  the 
proper  time  the  referee  must  have  ruled  it  necessary,  or  have 
violated  a  well  known  rule  of  pleading,  that  it  is  necessary  to 
aver  whatever  is  material  or  necessary  to  prove. 

It  is  further  insisted  that  the  defendants  in  this  case  must 
have  known  whether  they  built  the  fences  or  not,  and  that  they 
are  charged  with  not  building.  The  plaintiff,  however,  avers 
that  the  horse  escaped  on  to  the  road  in  consequence  of  a  defect 
in  the  fence  between  a  certain  lot  and  the  rail  road,  which  it 
was  the  duty  of  the  defendants  to  maintain  and  keep  in  repair ; 
they  admitting  that  the  fence  had  been  built  but  had  become 
defective  and  out  of  repair.  The  same  remark  is  applicable  as 
to  the  cattle-guards,  and  the  bridge.  All  which  defects,  as  be- 
fore remarked,  were  more  likely  to  have  been  known  to  the 
engineer  than  to  the  company,  particularly  the  insufficiency  of 
the  cow-catcher  attached  to  the  locomotive,  to  permit  which  he 
niigVit  be  deemed  to  have  been  grossly  negligent  himself.  With- 
out further  pursuing  this  subject,  I  am  satisfied  that  the  judge 
was  right  at  special  term  in  sustaining  the  demurrer,  and  I  am 
for  affirming  the  order,  with  $10  costs. 

Order  affirmed. 

[Schenectady  General  Term.  May  7.  1855.      C.  L.  Allen,   Bockes  and 
James,  Justices.] 


Underhill  vs.  The   Saratoga    and   Washington   Rail 
Road  Company. 

No  precise  technical  words  are  required,  to  make  a  condition  precedent  or  subse- 
quent.   The  construction  must  always  be  founded  on  the  intention  of  the  parties. 

If  the  act  or  condition  required  does  not  necessarilj-  precede  the  vesting  of  the 
estate,  but  may  accompany  or  follow  it,  and  if  the  act  may  be  as  well  done 
after  as  before  the  vesting  of  the  estate,  or  if  from  the  nature  of  the  act  to  be 
IKjrformed  and  the  time  required  for  its  performance,  it  is  evidently  the  inten- 
tion of  the  parties  that  the  estate  shall  vest,  and  the  grantee  perform  the  act. 
alter  taking  possession   then  the  condition  is  subsequent. 


45(j  CASES  IN  THE  SUPREME  COURT. 


Underliill  v.  Saratoga  and  Washington  Rail  Road  Co. 

^ 1 

U'lien;  a  grant  was  upon  ike  condition  that  the  grantees  should  huild  and  mai;>- 
tain  a  water  tight  enbankment  or  dam  over  a  certain  brook  crossing  the  land 
conveyed,  as  part  of  their  line  of  road,  and  that  the  said  cmhanknient  or 
dam,  with  Ihe  flood-gates  and  sluice-ways  therein,  might  be  used  for  hydraulic 
purposes,  by  the  grantors,  their  heirs  and  assigns ;  and  it  was  covenanted  that 
the  grantees  should  not  be  liabie  for  any  damages  which  the  grantors  should 
sustain  in  case  of  a  break  in  the  dam  or  an  overflow  thereof,  unless  the  same 
should  happen  through  the  gross  negligence  or  willful  misfeasance  of  the 
grantees,  but  that  the  grantees  should  repair  all  damages  which  the  dam  or 
embankment  should  at  any  time  sustain,  forthwith  ;  it  was  held  that  the  con- 
dition was  siibsequent,  and  that  the  effect  of  the  deed  was  to  vest  the  fee  simple 
of  the  estate  in  the  grantees,  subject  to  be  defeat€d  by  a  neglect  or  refusal  to 
perform  the  condition. 

Held  also,  that  the  effect  of  an  omission  to  perform  the  condition,  by  the  grantees 
was  to  give  the  gi-antors,  or  in  case  of  their  death,  their  heirs,  the  right  of  en 
try;  but  that  no  action  could  be  maintained  by  an  assignee  of  the  grantors,  to 
recover  the  land  ;  wliether  the  breach  was  before  or  after  the  assignment. 

Jleld  further,  that  by  a  general  assignment,  made  by  the  grantors,  to  a  thinl 
person,  of  all  their  property,  rights,  claims  and  dem.inds,  the  condition  was 
gone,  and  the  grantees  obtained  an  absolute  estate,  and  were  discharged  from 
the  condition,  and  all  claim  for  damages  for  a  breach  of  it. 

And  held,  that  the  condition  could  not  be  construed  to  be  a  covenant,  so  as  to 
enable  the  assignee  of  the  grantors  to  maintain  an  action  to  recover  damages 
for  a  breach  thereof. 

Nor  can  the  assignee,  in  such  a  case,  maintain  an  action  for  damages,  on  the 
ground  of  an  implied  covenant 

Where  a  plaintiff",  in  his  complaint  and  on  the  trial,  claims  to  recover  land  by 
way  of  forfeiture,  on  the  ground  of  a  failure  to  peribrm  a  condition  on  which 
it  was  granted,  he  will  be  considered  as  waiving  any  claim  for  damage.s  for 
breach  of  a  covenant  contained  in  the  grant.  He  cannot  be  allowed  to  pursue 
lH)th  remedies  at  the  same  time,  and  in  the  same  action. 

A  condition  in  a  deed,  when  explicit  words  are  used,  creating  such  condition,  win 
not  be  construed  into  a  covenant,  except  to  avoid  a  forfeiture. 

rpmS  was  an  action  to  recover  the  possession  of  certain  lands, 
X  and  also  damages  for  the  breach  of  certain  covenants  con- 
tained in  a  deed.  The  complaint  averred  that  on  or  about  the 
30th  day  of  April,  1847,  Henry  H.  Lawrence  and  Richard  Law- 
rence, being  seised  and  possessed  of  the  lands  and  premises  in 
question,  witli  their  wives  conveyed  to  the  defendants  the  said 
land  comprised  and  included  within,  and  bounded  by,  the  two 
outward  lines  of  the  rail  road  constructed  or  to  be  constructed 
by  the  defendants  between  the  villages  of  Saratoga  Springs  and 


SCnENECTADY— MAY,  1855.  457 


Undcrhill  v.  Saratoga  and  Washington  Rail  Road  Co. 

Wh-itehall,  where  the  road  crossed  or  ran  upon  the  land  owned 
or  possessed  by  the  said  Lawrences,  in  the  town  of  Saratoga 
Springs,  being  60  feet  in  w^idth,  "  itpon  the  condition  however, 
that  the  said  parties  of  the  second  part  in  the  said  deed  named, 
shouhi  build  and  maintain  a  water-tight  embankment,  or  dam, 
over  the  ravine  across  the  Loughbury  creek,  as  a  part  of  their 
line  of  road,  and  that  the  said  embankment  or  dam,  with  the 
flood-gates  and  sluice-ways  therein  might  be  used  for  hydraulic 
purposes  by  the  said  parties  of  the  first  part,  their  heirs  and 
assigns."  The  complaint  further  averred  that  there  was  also  a 
covenant  by  the  grantees  to  '■^repair  all  damages  which  the 
said  dam  or  embankment  should  at  any  time  susta'm,  forthwith.'^ 
That  the  defendants,  immediately  after  the  execution  of  the 
deed,  entered  into  the  possession  of  the  land  conveyed,  and  ever 
since  had  been  and  still  were  in  possession  thereof.  That  they 
had  not  kept  and  fulfilled  the  conditions  of  the  deed,  and  had 
not  built  or  maintained  a  water-tight  embankment  or  dam  over 
the  said  Loughbury  creek,  but  had  wholly  neglected  and  refused 
so  to  do.  That  on  the  13th  of  March,  1848,  the  Lawrences  sold 
and  conveyed  to  the  plaintiff  the  land,  premises,  covenants  and 
conditions,  and  all  their  real  and  personal  property,  rights  in 
action,  interest  and  effects  growing  out  of  said  deed  and  its  cov- 
enants. That  by  reason  of  such  breach  and  neglect  the  plain- 
tiff, since  said  deed  to  him,  and  the  Lawrences,  before  that  time, 
had  been  deprived  of  the  use  of  the  embankment  or  dam  for 
hydraulic  and  other  purposes  ;  and  he  claimed  a  forfeiture  and  to 
recover  possession,  and  also  the  damages  sustained  by  the  plain- 
tiff since  the  conveyance  to  him. 

The  answer,  after  averring  that  the  defendants  did  not  exe- 
cute the  deed  and  were  not  bound  by  the  covenants  contained 
in  it,  denied  the  several  allegations  in  the  complaint,  except  as 
to  the  execution  of  t)ie  deed  and  the  taking  possession  of  the 
premises,  and  averred  a  performance  of  the  conditions  on  the 
part  of  the  defendants.  It  then  set  up  various  defenses  not  ne- 
cessary to  be  stated  here ;  upon  which  the  reply  took  issue. 

The  action  was  tried  at  the  Saratoga  circuit  in  June,  185o. 
and  upon  the  trial  the  plaintiff  insisted  that  he  had  proved  that 

YoL.  XX  58 


458  CASES  IN  THE  SUPREME  COURT. 

Undorhill  v.  Saratoga  and  Washington  Rail  Road  Co. 

the  defendants  had  not  constructed  a  water-tight  enbankaent 
or  dam,  such  as  was  required  by  the  condition,  and  claimed  dam- 
ages therefor,  and  also  possession  of  the  land,  by  reason  of  the 
forfeiture  for  breach  of  the  condition.  It  appeared  in  evidence 
that  the  Lawrences  were  permitted,  by  an  agreement  dated  Oct. 
15,  1844,  under  the  hands  of  Messrs.  Davison  and  Marvin,  two 
of  the  defendants'  directors,  to  construct  the  dam  themselves, 
and  the  defendants,  by  a  resolution  of  the  board,  on  the  6th  of 
December,  1844,  gave  them  liberty  to  construct  it ;  and  that 
one  of  the  Lawrences  built  the  dain.  No  erection  or  location 
of  any  machinery  was  shown  or  pretended.  The  plain  tiff  also 
proved  the  conveyance  to  him,  which  was  by  virtue  of  a  general 
deed  of  assignment,  in  trust  for  the  benefit  of  creditors,  contain- 
ing a  clause  as  follows  :  "  All  and  singular  the  lands,  tenements, 
hereditaments,  real  estate  and  chattels  real  of  the  said  party  of 
the  first  part  [the  Lawrences]  and  of  each  of  them,  wherever  the 
same  may  be  situated,  and  also  all  the  goods,  wares,  merchandise, 
bonds,  notes,  accounts  and  debts  due  and  owing  to  the  said  par- 
ties of  the  first  part  and  each  of  them,  in  what  manner  soever 
secured,  and  all  books  and  vouchers  relating  thereto,  and  all  the 
personal  property  of  the  said  parties  of  the  first  part,  of  every 
kind  and  description,  wherever  the  same  may  be,  in  trust  how- 
ever," &-C. 

The  plaintiff  having  rested,  the  defendants'  counsel  claimed 
that  the  plaintiff  should  be  required  to  elect  whether  he  would 
claim  a  forfeiture  of  the  land,  or  whether  he  would  claim  dam- 
ages for  a  breach  of  the  covenant  ;  that  he  could  not  claim  both. 
/The  plaintiff's  counsel  then  insisted  that  he  was  entitled  to 
recover  the  land,  on  the  ground  of  a  failure  to  perform  the  con- 
dition in  the  deed.  That  the  consideration  was  precedent  and 
subsequent,  and  that  for  a  breach  of  it  an  action  could  be  main- 
tained by  the  plaintiff,  as  assignee  of  the  grantors,  and  that  if 
he  was  not  entitled  to  maintain  the  action  on  the  ground  of  for- 
feiture he  was,  entitled  to  recover  damages  for  a  violation  of  the 
condition  and  covenant.  The  court  decided  that  the  plaintiff 
could  not  recover  the  land,  or  the  estate,  for  a  breach  of  the 
condition  in  the  deed   whether  such  breach  occurred  before  or 


SCHENECTADY— MAY,  1855.  459 


Underbill  v.  Saratoga  and  Washington  Rail  Read  Cc, 

after  the  conveyance  to  the  plaintiff,  and  that  such  breach  of  the 
condition  was  not  assignable.  The  plaintiff 's  counsel  excepted. 
The  counsel  for  the  defendants  then  moved  for  a  nonsuit,  upon 
the  following  grounds  :  1.  That  the  plaintiff,  under  the  evidence, 
could  not  maintain  his  action,  for  the  recovery  of  the  land,  on 
the  ground  of  a  breach  of  the  condition,  because  the  right  of 
action,  if  any^  could  not  be  assigned.  2.  That  if  assignable, 
such  right  would  not  pass  to  the  .plaintiff,  without  an  express 
grant,  and  that  there  was  not  suflBcient  evidence  of  such  grant. 
3.  That  the  plaintiff,  upon  the  evidence,  Avas  not  entitled  to 
maintain  an  action  for  the  recovery  of  the  land  upon  the  ground 
of  forfeiture.  4.  That  the  condition  in  the  deed  to  the  defend- 
ants of  the  premises  in  question,  could  only  be  reserved  to  the 
grantor  and  his  heirs.  The  conveyenceby  the  grantors,  to  the 
plaintiff,  upon  the  evidence,  did  not  entitle  the  plaintiff  to  re- 
enter or  recover  the  land.  5.  That  the  plaintiff  could  not  main- 
tain an  action  to  recover  damages  for  a  breach  of  the  condition 
or  covenants,  for  they  had  not  executed  the  deed,  and  this  action 
could  not  be  maintained  upon  any  implied  covenant  or  agree- 
ment. The  court  ordered  a  nonsuit,  and  the  plaintiff's  counsel 
excepted.  A  motion  was  now  made  for  a  new  trial,  npon  a  bill 
of  exceptions. 

Edwards  6^  Meads,  for  the  plaintiff. 

W.  L.  F.  Warren  and  W.  A.  Beach,  for  the  defendants. 

By  the  Court.  C.  L.  Allen,  J.  There  can  be  little  doubt, 
I  apprehend,  but  that  the  provision  in  the  deed  was  a  condition 
subsequent.  No  precise  technical  words  are  required  to  make 
a  condition  precedent  or  subsequent.  The  construction  must 
always  be  founded  on  the  intention  of  the  parties.  (3  Cruisers 
Dig.  468,  tit.  32,  ch.  24,  sec.  70.  1  id.  tit.  13,  ch.  1,  sec.  10.) 
The  same  words  have  been  construed  both  ways,  and  much  has 
been  made  to  depend  on  the  order  of  time  in  which  the  condi- 
tions are  to  be'  performed.  If  the  act  or  condition  required  does 
not  necessarily  precede  the  vesting  of  the  estate,  but  may  ac 


460  OASES  IN  THE  SUPREME  COURT. 

Uiiderhill  v.  Saratoga  and  Washington  Kail  Road  Co. 

company  or  follow  it,  and  if  the  act  may  be  as  well  done  after 
as  before  the  vesting  of  the  estate,  or  if  from  the  nature  of 
the  act  to  be  performed  and  the  time  required  for  its  perform- 
ance it  is  evidently  the  intention  of  the  parties  that  the  estate 
shall  vest,  and  the  grantee  perform  the  act  after  taking  posses- 
sion, then  the  condition  is  subsequent.  {Blacksmith  v.  Fellows, 
3  Seld.  401,  414.  Parmelee  and  others  v.  The  Osicego  and 
Syracuse  Rail  Road  Co.,  2. id.  74,  80.  Martin  v.  Ballou.  13 
Barb.  119  133.  Grant  v.  Johnson,  1  Seld.  247.  Tmnpkins 
v.  Elliot,  5  Wend.  496.  1  Hilliard's  Ab.  247,  §  5.  Finlay 
v.  King,  3  Peters,  346,  374.  Stuyvesant  v.  The  Mayor  of 
New  York,  11  Paige,  414.) 

Do  the  acts  required  by  the  condition  in  this  case  necessarily 
pi'ecede  the  vesting  of  the  estate?  The  grant  was  "  upon  the 
condition  that  the  parties  of  the  second  part  in  the  said  deed 
named,  should  build  and  maintain  a  Avater-tight  embankment  or 
dam  over  the  ravine  across  the  Loughbury  brook,  as  a  part  of 
their  line  of  road,"  and  "  that  the  said  embankment  or  dam,  with 
the  flood-gates  and  sluice-ways  therein,  might  be  used  for  hy- 
draulic purposes  by  the  said  parties  of  the  first  part,  their 
heirs  and  assigns."  A  further  covenant  was  inserted  in  the 
deed,  that  the  parties  of  the  second  part  were  not  to  be  liable 
for  any  damages  which  the  parties  of  the  first  part,  their  heirs 
or  assio;ns,  should  or  might  sustain  in  case  of  a  break  of  the  dam 
ur  overflow  of  the  same,  unless  they  should  happen  through  the 
gross  negligence  or  willful  misfeasance  of  the  parties  of  the 
second  part ;  but  "  the  said  parties  of  the  second  part  should 
repair  all  damages  which  the  dam  or  embankment  should  at  any 
time  sustain,  forthwith."  It  is  pretty  clear,  from  the  phrase- 
ology of  the  condition,  that  the  acts  required  might  not  only  fol- 
low the  vesting  of  the  estate,  but  that  they  almost  necessarily 
did,  or  that  at  all  events  it  was  the  evident  intention  of  the  par- 
ties that  the  dam  or  embankment  would  involve  much  time  and 
expense,  and  require  the  possession  of  the  land  on  the  part  of 
the  defendants.  There  was  no  limit  to  the  time  of  its  perform- 
ance, and  consequently  the  defendants  would  be  allowed  a  rea- 
sonable time  to  construct  and  complete  the  work.     And  it  was 


SCHENEOTADY— MAY,  1855.  46  J 

Underbill  v.  Saratoga  and  Washington  Rail  Road  Co. 

never  ccntern plated  that  during  all  the  time  necessary  foi'  such 
an  act  the  defendants  should  be  prevented  from  taking  posses- 
sion of  the  land,  and  delayed  in  the  construction  of  their  road, 
which  might  otherwise  be  progressing  at  the  same  time  that  the 
condition  in  the  deed  was  being  complied  with.  I  am  of  opin- 
ion, therefore,  that  the  condition  was  subsequent,  and  that  the 
effect  of  the  deed  was  to  vest  the  fee  simple  of  the  estate  in  the 
defendants,  subject  to  be  defeated  by  a  neglect  or  refusal  to 
perform  the  condition.  The  cases  already  cited  establish  this 
proposition,  and  it  is  directly  decided  in  Ludlow  v.  The  New 
York  and  Harlem  Rail  Road  Co.^  (12  Barh.  440.)  And  see 
Wijnne  v.  Wymie^  (2  Man.  <Sf  Gran.  10 ;  40  Eng.  Com.  L. 
Rep.  237.) 

The  plaintiff's  counsel,  while  he  rather  seems  to  concede  that 
the  condition  is  subsequent,  insists  that  it  was  broken,  and  that 
the  plaintiff,  who  is  the  grantee  of  the  Messrs.  Lawrence  the 
grantors  to  the  defendants,  acquired  all  their  rights  and  is  enti- 
tled to  recover  the  land.  This  right,  he  contends,  even  before 
breach  and  independently  of  any  statute,  was  a  "possibility 
coupled  with  an  interesty  and  assignable  in  equity  or  \)^  de- 
vise, and  a  fortiori  after  breach.  The  case  of  Jackson  v.  Wal- 
dron,  (13  Wend.  178.)  cited  by  the  counsel,  does  not,  in  my 
judgment,  fully  sustain  his  position.  At  all  events  it  does  not 
decide  that  such  a  right  is  assignable.  It  is  true  that  Chan- 
cellor Walworth,  in  delivering  his  opinion  in  the  court  of  errors, 
in  that  case,  remarks,  (pp.  194,  195)  that  "  it  appears  to  be 
finally  settled,  in  England,  that  possibilities  coupled  with  an 
interest,  although  not  technically  clothed  with  an  estate  in 
possession,  reversion  or  remainder,  are  in  the  nature  oPremain- 
ders,  and  as  such  are  devisable."  Yet  he  adds,  "  it  is  still 
questionable  by  many  of  the  English  elementary  writers,  wheth- 
or  such  estates  are  in  fact  assignable."  And  he  proceeds  to 
remark  that  it  is  said  in  a  note  to  Shellei/\<i  case  that  where  a 
possibility  is  coupled  with  an  interest,  "  as  where  the  person  who 
is  to  take  upon  the  happening  of  the  contingency  is  fixed  and 
ascertained,  it  may  not  only  be  bound  by  estoppel  or  contract 
but  may  also  be  released,  pass  under  the  bargain  and  sale  of 


462  CASES  IN  THE  SUPREME  COURT. 

Underliill  v.  Saratoga  and  Washington  Rail  Road  Co. 

commissioners  of  bankrupts,  or  be  devised,  though  it  cannot 
be  granted  or  transferred  by  the  ordinary  rides  of  the  com- 
mon lawP  After  a  review  of  several  cases  cited,  he  comes  tc 
the  conclusion  that  whatsoever  is  devisable  may  be  gm anted. 
This  conclusion,  however,  was  not  adopted  by  a  majority  of  the 
court,  and  the  judgment  of  the  supreme  court  in  that  case  was 
affirmed,  against  the  cpinion  and  vote  of  the  chancellor.  Sena- 
tor Trac3\  who  delivered  the  leading  opinion  in  favor  of  affirm- 
ance, makes  the  significant  remark  {p.  221  of  the  case,)  "The 
rule  seems  to  be  now  admitted  that  every  interest  or  estate  in 
land  may  be  released  to  the  terre-tenant,  though  it  might  not 
be  grantable  to  a  stranger.  Thus  if  a  man  grants  a  limited 
fee,  the  possibility  of  reverter  on  the  determination  of  the 
limited  estate  continues  in  him,  but  he  cannot -make  a  valid 
grant  of  it  to  a  stranger,  though  it  is  a  possibility  coupled 
with  an  interest.  He  however  can  release  it,  and  it  seems  to 
be  the  amount  of  the  decisions  in  Manning'' s  case.  (8  Coke,  187,) 
and  LampeCs  case,  (10  Coke,  46,)  that  a  possibility  coupled 
with  an  interesti  is  not  assignable,  though  it  be  releaseable," 
undf  he  finally  adds,  "  descendible  and  devisable." 

The  cases  cited  in  5  Pick.  528,  and  21  id.  215,  223,  decide  no 
more  than  that  such  an  interest  is  descendible  and  devisable,  but 
do  not,  as  I  understand,  undertake  to  go  the  length  of  establish- 
ing the  proposition  that  it  is  assignable.  Besides,  although  the 
decisions  in  that  state  are  here  held  as  high  authorities,  yet  when 
the  adjudications  of  their  courts  come  in  conflict  Avith  those  of 
our  own  state,  (.as  will  be  found  to  be  the  case  here,  if  they  are 
considered  as  deciding  the  point  contended  for  by  the  plaintiiF 
in  his  favor)  those  of  our  own  courts  must  prevail. 

The  chancellor,  in  the  case  of  Lawrence  v.  Bayard,  (7  Paige, 
70,  75,)  remarks  that  the  revised  (statutes  (1  R.  S.  725,  §  o5.) 
have  declared  in  express  terms  that  expectant  estates  are  de- 
scendible,  devisable  and  alienable,  in  the  feame  manner  as 
estates  in  possession,  and  that  by  an  examination  of  the  several 
provisions  of  the  revised  statutes  it  will  be  seen  that  by  the 
term  expectant  estates  the  legislature  intended  to  include 
every  present  right   or  interest,   either   vested  or  contingent. 


SCHENECTADY— MAY,  1855.  453 


Underliill  v.  Saratoga  and  Washiiigton  Rail  Eoad  Co. 

which  may  by  possibility  vest  in  possession  at  a  future  day, 
and  that  the  mooted  question  ■whether  a  mere  perpetuity 
coupled  with  an  interest  is  capable  of  being  conveyed  or  assign- 
ed at  law,  is  therefore  forever  put  at  rest  in  this  state."  This 
decision  was  after  that  of  Jackson  v.  Waldron.  though  that 
case  came  out  of  the  court  of  errors  in  1834,  after  the  revised 
statutes  took  effect.  The  action,  however,  was  commenced  in 
1828.  But  this  court,  in  the  case  of  Nicoll  v.  The  Neio  York 
and  Erie  Rail  Road  Company,  decided  in  1852,  long  after 
the  revised  statutes  took  effect,  and  since  the  decision  in  7th 
Paige,  have  adjudged  that  conditions  in  a  deed  can  only  be  re- 
served for  the  grantor  and  his  heirs,  and  that  a  conveyance 
made  by  the  grantor,  to  a  third  person,  either  before  or  after 
breach  of  the  condition,  will  not  carry  with  it  a  right  to  enter 
for  a  condition  broken.  The  court  say  "conditions  in  a  deed 
can  only  be  reserved  for  the  grantor  and  his  heirs.  A  stranger 
cannot  take  advantage  of  them.  And  the  reason  is  that  the 
estate  is  not  defeated  although  the  condition  be  broken,  until 
entry  by  the  grantor  or  his  heirs,  and  nothing  which  lies  in 
action,  entry  or  re-entry  can  be  granted  over,  in  order  to  dis- 
courage maintenance."  And  the  court  further  remark  that 
"  when  a  grant  in  fee  has  been  made,  depending  upon  a  condi- 
tion subsequent,  no  one  can  re-enter,  on  breach  of  the  condition, 
except  the  grantor  or  his  heirs,  and  a  conveyance  made  by  the 
grantor  to  a  third  person,  before  or  after  breach  of  the  condition, 
will  not  carry  with  it  a  right  to  re-enter  for  condition  broken. 
This  rule,  however,  does  not  extend  to  leases  in  fee,  reserving 
rents,  nor  to  leases  for  life  or  years.  (1  R.  S.  747,  §§  23,  24, 
25.)  Kent,  in  his  Commentaries,  {vol.  4,  p.  127,)  lays  down 
the  same  doctrine,  which  is  supported  in  1  Cruise's  Digest, 
tit.  13,  ch.  1,  j  17,  and  same  tit.  §§  53,  65.  And  see  1  Saund. 
287  d.  (;«.)  16.  3  Denio,  334,  360.  Bacon's  Abr.  tit.  Condi- 
tion, E.  1  Wend.  388,  395.  2  Hill,  491, 495.  Shep.  Touch. 
158.  12  Barb.  440,  2,  3.  The  case  then,  in  12//i  Barbour, 
supported  as  it  seems  to  be  by  abundant  authority,  if  recog- 
nized as  law,  and  it  has  not  been  reversed  on  appeal,  is,  it  ap- 
pears to  me,  decisive  of  the  present. 


4t)4  (JASES  IN  THE  SUPREME  COUKT. 

Underhill  v.  Saratoga  and  Washington  Rail  Road  Co. 

Eut  the  counsel  for  the  plaintiff  insists  that  both  the  case? 
in  12th  Barbour  are  different  in  principle,  and  were  both  de- 
cided on  a  technical  condition  that  unless  the  road  was  built 
within  a  short  period  the  grant,  in  each  case,  should  be  void  ; 
recognizing,  I  suppose,  the  well  established  principle  that  con- 
ditions involving  forfeiture  are  hot  favored  in  law,  and  "  are 
construed  strictly  because  they  tend  to  destroy  estates,  and  are 
odious.'  (4  Kent,  128,  129.)  I  am  unable  to  discover  the  dis- 
tinction sought  to  be  taken,  nor  why  the  exact  point  was  not 
raised  and  passed  upon  by  the  court  in  both  those  cases. 

It  is  urged  that  the  old  rule  forbidding  such  assignments  at 
law  was  in  aid  of  the  policy  of  maintenance,  which  does  not 
prevail  here.  In  the  case  in  22c?  Wendell,  405,  cited  by  the 
counsel,  one  of  the  members  of  the  court  of  errors,  in  delivering 
his  opinion,  said  it  was  insisted  on  the  argument  that  the  legisla- 
ture had  intentionally  repealed  all  statutory  provisions  on  the  sub- 
ject; except  as  to  the  buying  and  selling  of  pretended  titles  to 
land,  yet  he  remarks,  "  I  do  not  think,  however,  that  agreements 
actually  champertous,  as  where  a  stranger  to  the  subject  of 
litigation  who  has  no  interest  therein  in  law  or  equity,  or  in 
expectancy,  by  the  ties  of  blood  or  affinity,  or  Avho  agrees  to 
assist  in  embroiling  his  neighbors  in  litigation,  or  in  carrying 
their  suits  through  the  different  courts,  can  be  enforced  in  courts 
of  justice."  In  other  Avords,  the  statute  (2  R.  S.  691,  §  6) 
providing  that  no  person  shall  buy  or  sell  or  in  any  manner 
procure,  or  make,  or  take  any  promise  or  covenant  to  convey 
any  pretended  right  or  title  to  property  unless  the  grantor  is 
in  possession  thereof,  (fcc.  is  yet  in  full  force. 

I  come  to  the  conclusion  that  ths  effect  of  the  omission  to 
perform  the  condition  by  the  defendant  was  to  give  the  grant- 
ors, or  in  case  of  their  death  their  heirs,  the  right  of  entry;  but 
that  no  action  can  be  maintained  by  the  assignee,  to  recover 
the  land,  whether  the  breach  was  before  or  after  the  assignment, 
and  that  the  court  was  therefore  right  in  so  holding  at  the 
circuit. 

The  remaining  question  which  arises  is,  whether  the  plaintiff 
is  entitled  to  recover  damages  for  breach  of  the  cojiditioa. 


SCnENECTADY— MAY,  1855.  4t)*o 

Underbill  v.  Saratoga  and  Washington  Rail  Road  Co. 

It  will  he  proper,  preparatory  to  entering  into  the  consider- 
ation of  this  question,  to  look  at  the  complaint  and  ascertain 
what  is  the  particular  cause  of  action,  and  what  relief  is  de- 
manded. After  setting  forth  the  condition  and  the  covenant  to 
repair,  the  complaint  avers  that  the  defendant  has  not  fulfilled 
the  said  covenants  and  conditions,  on  his  part,  in  the  said  first 
mentioned  deed  contained,  but  on  the  contrary  have  not  built 
or  maintained  a  water-tight  embankment  or  dam  over  the  said 
ravine  across  the  Loughbury  brook,  and  according  to  the  true 
intent  and  meaning  of  the  said  deed  and  of  the  said  conditions 
and  covenants  thereof,  but  have  hitherto  wholly  refused  so  to 
do.  "  And  the  said  plaintiff  further  says  that  by  reason  of  the 
failure  of  the  said  defendants  to  build  and  maintain  the  said 
water-tight  embankment  the  said  Lawrences  were,  previous  to 
and  up  to  the  time  of  making  the  assignment,  and  the  said 
plaintifi"  ever  since  the  said  assignment  to  him,  has  ])een  de- 
[>vived  of  the  use  of  the  said  embankment  or  dam,  and  of  the 
flood-gate  and  sluice-way  therein,  for  hydraulic  purposes,  and  also 
of  the  use  of  the  water  power  and  other  rights  and  privileges," 
enumerating  them,  and  concluding  by  averring  that  the  Law- 
rences before  an<l  the  plaintiff,  sinee  tlie  assignment,  have  sus- 
tained damages  by  reason  thereof  to  the  amount  of  $10,000,  and 
demanding  that  the  said  defendants  be  adjudged  to  have  broken 
the  said  condition,  and  also  the  said  covenants  on  their  part  in 
the  said  deed  contained,"  and  that  the  estate  may  be  forfeited 
and  revert  to  the  plaintiff,  his  heirs  and  assigns,  and  that  he 
may  recover  the  possession,  "  together  with  the  said  damages  so 
as  aforesaid  sustained  by  the  said  Lawrences  and  assigned  to 
the  plaintiff,  and  also  the  damages  so  as  aforesaid  sustained  by 
the  plaintiff  since  the  said  assignment  to  him,  with  costs,"  &c. 

It  will  be  perceived  that  the  whole  gravamen  of  the  com- 
plaint is,  that  the  condition  to  build  the  dam  was  broken  and  a 
forfeiture  claimed  because  thereof.  No  averment  is  made  of 
a  breach  of  the  covenant  to  repair,  or  claim  put  forth  for 
damages  on  that  ground.  It  would  have  been  deemed  prepos- 
terous, probably,  to  have  presented  such  a  claim,  when  no 
dam   had    been   constructed,    to   be   repaired,   and    when   the 

Vol.  XX.  59 


466  CASES  IN  THE  SUPREME  COURT. 


Uiideihill  V.  Saratoga  and  Washington  Rail  Road  Co. 

whole  burthen  of  the  action  was  to  recover  the  possession 
of  the  premises,  for  a  non-performance  of  tlie  very  condition 
which  must  have  been  complied  with,  at  least  to  such  an  extent 
as  that  the  dam  had  been  constructed  so  as  to  need  repairs, 
T>'hich  the  defendants  had  neglected  to  make.  The  whole  claim 
for  damages  is,  as  I  understand  the  complaint,  for  losses  sus- 
tained by  the  Lawrences  and  the  plaintiff  by  reason  of  the  fail- 
ure of  the  defendants  to  build  or  construct  a  sufficient  dam.  This 
view  brings  us  to  the  question,  can  the  condition  be  construed 
into  a  covenant,  so  that  the  plaintiff  can  be  entitled  to  maintain 
this  action  for  a  breach  of  such  covenant?  It  was  liot  seriously 
■contended,  I  believe,  upon  the  argument,  that  there  was  any 
express  covenant  in  the  grant,  except  the  one  to  repair ;  and  it 
has  been  seen  that  no  damages  can  be  claimed  for  a  breach  of 
that  covenant,  as  none  could  in  this  case  exist.  And  in  the 
view  I  take  of  the  question  it  is  unnecessary  to  decide 
Avhether  the  defendants  executed  the  deed  or  not ;  or  whether 
it  would  be  necessary,  in  order  to  sustain  an  action.  It  is  suffi- 
cient, in  my  judgment,  that  the  plaintiff  neither  sets  up  nor 
proves  any  express  covenant.  Nor  do  I  think  the  condition  can 
be  construed  into  a  covenant.  The  words  are  explicit,  creating 
a  condition.  The  intent  of  the  parties  must  govern,  and  the 
rules  as  to  ascertaining  and  determining  that  intent  are  the  same 
as  those  relating  to  covenants.  It  was  clearly  the  intent,  as  to 
the  condition,  that  a  forfeiture  should  accrue,  in  case  of  a  fail- 
ure to  perform.  It  was  a  grant  of  the  estate  07ily  upon  that 
condition.  The  plaintiff  has  so  treated  it,  not  only  in  his  com- 
plaint, but  on  the  trial.  He  insisted  at  the  circuit — on  being 
required  to  elect  whether  he  Avould  claim  a  forfeiture  of  the 
estate,  or  damages  for  a  violation  of  the  covenant — that  he  was 
entitled  to  recover  the  land  on  the  ground  of  a  failure  to  per- 
forni  the  condition  on  which  the  grant  was  made  ;  triiat  the 
condition  was  both  precedent  and  subsequent,  and  that  for  a> 
breach  an  action  could  be  maintained  liy  the  plaintiff  as  as- 
signee of  the  grant(frs  ;  and  that  if  he  was  not  entitled  to  main- 
tain the  action  on  that  ground,  he  was  entitled  to  recover  dam- 
ages for  a  violation  of  the  condition  and  covenant.    The  court  held 


SCHENECTADY- MAY,  1854  467 

Underbill  v.  Saratoga  and  Washington  Rail  Road  Co. 

that  he  was  not  entitled  to  recover  the  land  for  a  breach  of  ihe 
condition  of  the  deed,  and  granted  a  nonsuit.  The  Avhole  claim 
was  on  the  ground  of  forfeiture,  or  damages  for  not  complying 
with  the  condition  to  build,  which  the  plaintiff  sought  for  that 
purpose  to  construe  into  a  covenant.  I  do  not  perceive,  if  he 
fails  to  establish  the  first  claim,  how  he  can  sustain  himself  on 
the  second.  By  insisting  upon  his  claim  of  forfeiture,  and  to 
recover  the  land,  he  must  waive  the  claim  for  damages  for 
breach  of  the  covenant,  and  cannot  be  allowed  to  pursue  both 
remedies  at  the  same  time  and  in  the  same  action.  (9  Paige, 
430.)  Besides,  it  has  been  held  that  a  condition  in  a  deed 
when  explicit  words  are  used,  creating  such  condition,  will  not 
be  construed  into  a  covenant,  except  to  avoid  a  forfeiture. 
(1  Hil.  Ahr.  299.  Gray  v.  Blanchard,  8  Pick.  284.)  As  be- 
fore remarked,  there  is  no  express  covenant.  But  it  is  argued 
that  there  is  an  express  covenant  to  repair,  which  runs  with 
the  land.  This,  as  a  naked  proposition,  no  one,  probably,  dis- 
putes. {Norman  v.  Wells,  17  Wend.  136,  and  various  other 
cases.)  But  the  difficulty  here  is,  that  the  plaintiff  does  not 
seek,  nor  can  he  claim,  to  recover  upon  a  breach  of  that  cove- 
nant. He  relies  upon  a  breach  of  the  condition  alone,  which  it 
has  been  seen,  cannot  be  construed  into  a  covenant.  But  if  it 
could,  it  would  not,  in  my  judgment,  run  with  the  reversion. 
The  parties  are  now  possessed  of  different  interests.  If  I  am 
correct  in  the  former  position  I  have  taken,  that  by  the  assign- 
ment by  the  Lawrences  to  the  plaintiff  the  condition  was  gone, 
and  the  defendants  obtained  an  absolute  estate,  it  follows  that 
they  are  discharged  from  the  condition  and  all  damages  for  a 
breach  of  it.  (^Shep.  Touch.  158.  A7id  see-  Bleecker  v. 
Smith,  13  We}id,  530,  533.)  The  statute  (1  R.  iS.  747,  §^  17, 
18,  19)  does  not  aid  the  plaintiff.  The  provisions  of  those  sec- 
tions only  extend  to  covenants  in  leases  reserving  rents,  for  life 
or  years,  or  in  fee. 

I  pass  to  the  only  remaining  question,  which  is,  can  the  ac- 
tion be  sustained  upon  the  ground  of  an  implied  covenant  ?  It 
nas  been  shown  that  the  condition  was  reserved  to  the  grantors 
and  their  heirs,  and  did  not  include  their  assigns.     That  by  the 


4(58  CASES  IN  THE  SUPREME  COURT. 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co. 

assignment  the  condition  was  discharged  forever.  Being  thus 
extinguished,  how  can  it  be.  revived,  either  as  a  condition,  or  a 
covenant?  It  appears  to  nie  the  whole  right  of  action  upon 
the  condition  is  gone,  so  far  as  the  plaintiff  is  concerned.  But 
the  statute  (1  R.  S.  738,  §  140)  declares  that  no  covenant 
shall  be  implied  in  any  conveyance  of  real  estate,  whether  such 
conveyance  contain  special  covenants  or  not.  This  statute  has 
received  a  construction,  in  the  case  of  Kinney  v.  Watts, 
(14  Wend.  38,)  in  which  the  court  say  that  the  language  is 
clear,  concise  and  peremptory,  that  no  covenant  whatever  shall 
be  implied  in  any  conveyance  of  real  estate,  and  that  there  is 
no  room  for  construction.     {And  see  8  Paige,  597,  599.) 

In  every  view  which  I  have  taken  of  this  case  I  can  discover 
no  ground  upon  which  the  plaintiff  is  entitled  to  recover,  and  I 
am  of  opinion  that  the  motion  to  set  aside  the  nonsuit  and  for 
a  new  trial,  should  be  denied  with  costs. 

New  trial  denied. 

[Schenectady  General  Term,  May  7,  1855.  C.  L.  Allen,  Bockes  and 
James,  Justices.] 


The  New  York  CEr^TRAL  Insurance  Company  vs.  The 
National  Protection  Insurance  Company. 

A  contract  for  insurance,  made  by  an  individual  who  acts  as  the  agent  of  both 
parties  in  making  the  same,  is  voidable  in  a  court  of  equity,  at  the  election  of 
the  principals,  or  either  of  them. 

"Where  an  agent,  without  the  knowledge  of  his  principal,  is  acting  also  in  behalf 
of  the  other  party,  in  making  a  contract,  the  presumption  of  fraud  is  not  an 
unreasonable  one.  But  the  principle  forbidding  such  contracts  is  a  mere  rule 
of  equity.  If  the  proper  forms  Imve  been  obssrved,  the  conveyance  is  good  at 
law,  and  the  title  passes.     The  contract  is  not  void,  but  only  voidable. 

But  this  defense  cannot  be  relied  on  in  an  action  upon  a  policj'  of  insurance,  if  i* 
is  not  set  up  in  the  answer. 

No  proof  can  be  offered  of  facts  not  put  in  issue  by  the  pleadings. 

»V  defendant  who  makes  a  defense  by  answer,  must,  besides  answering  the  plain 


MADISON— SEPTEMBEE,  1854.  4g9 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co 

tiff's  case  as  made  by  the  complaint,  state  in  his  answer  every  matter  of  defense 
of  which  he  intends  to  avail  himself. 

Where  conditions  of  insurance,  annexed  to  the  policy,  are  by  an  express  provision 
in  the  policy,  made  a  part  of  the  contract,  they  have  the  same  force  and  effect 
as  if  contained  in  the  body  of  the  policy. 

One  of  the  conditions  of  a  policy  was  that  no  insurance  should  be  binding  until 
the  actual  payment  of  the  premium.  The  money  was  in  a  bank  wln.'re  the 
ajient  was  in  the  habit  of  making  his  deposits,  deposited  to  the  credit  of  the 
insured.  The  casliier  told  the  agent  of  tlie  insurers,  at  the  time  tlie  arrange- 
ment for  the  insurance  was  made,  that  he  could  have  the  money.  The  agent 
directed  him  to  let  it  lie ;  saying  that  when  be  wanted  the  money  he  would 
draw  for  it.  It  was  not  in  fact  drawn  by  him  until  after  the  fire.  Held  that 
the  agent  had  \vaived  a  strict  compliance  with  the  condition,  and  that  he  had 
authoritj-  to  do  so. 

Where  a  policy  is  issued  and  delivered  to  the  insured,  and  the  premium  is  ac- 
knowledged in  tlie  policy  as  actually  received,  tliis  will  be  held  as  conclusive, 
upon  the  fact  of  payment,  and  will  bind  the  insurer. 

Where  a  fire  occurred  on  the  15th  of  June,  and  the  insured  knew  of  it  on  the  18th, 
and  sent  notice  to  the  insurers,  by  mail,  on  the  23d ;  Held  that  this  was  a  suf- 
ficient compliance  with  a  condition  in  the  policy,  requiring  notice  of  loss  to  be 
given  forthwith. 

Such  a  provision  has  never  been  construed  literally  to  require  notice  on  the  day. 
It  has  always  been  held  that  due  diligence,  under  all  the  circumstances,  wa.s 
all  that  was  required. 

A  general  agent  of  an  insurance  company  for  effecting  insurances  in  their  behalf, 
while  acting  within  the  general  scope  of  his  authority  in  making  an  insurance, 
will  bind  his  principals,  although  he  departs  from  his  instructions;  unless 
the  assured  have  notice  that  he  is  exceeding  his  authority. 

It  is  a  general  rule  that  whatever  is  known  to  an  agent  must  be  presumed  to  be 
knowTi  to  the  principal. 

But  it  seems  this  rule  is  confined  to  that  class  of  cases  where  the  knowledge  of 
the  fact  comes  to  the  agent  while  he  is  acting  for  his  principal,  in  the  course 
of  the  very  transaction  w  hich  becomes  the  subject  of  the  suit. 

Ilsnce  the  fact  that  an  agent  by  whom  an  insurance  is  effected,  had  previously 
received  instructions  from  his  principals  the  insurers,  will  not  be  regarded  as 
notice  to  the  insured  of  those  instructions  and  that  he  had  exceeded  his  author- 
ity, although  the  agent  was  at  the  time  of  making  the  insurance,  the  secretary 
of  the  insured. 

In  an  action  upon  a  policy  of  reinsurance,  the  reinsurer  is  liable  to  the  insurer 
for  the  costs  nnd  expenses  incurred  in  defending  a  suit  brought  by  the  i>arty 
originally  insured. 

rpHIS  was  an  appeal,  by  the  defendants,  from  a  judgment 
-l  rntered  against  them  at  a  special  term,  after  a  trial  at  the 
circuit.     The  action  was  upon  a  policy  of  reinsurance. 


470  CASES  IN  THE  SUPREME  COUKT. 

New  York  Ccutral  Ins.  Co.  v.  National  Protection  Ins.  Co. 
/.  E.  Dewey,  for  the  plaintiffs, 

Charles  S.  Lester,  for  the  defendants. 

By  the  Court,  Mason,  J.  This  is  an  action  upon  a  policy 
of  reinsurance  for  ^2000,  executed  by  the  defendants  to  the 
plaintiffs  through  their  agent,  G.  W.  Stevens,  who  was  also  the 
agent  of  the  plaintiffs  in  making  the  contract  of  insurance.  The 
risk  was  selected  and  the  rates  of  insurance  fixed  by  Stevens, 
and  the  question  is,  whether  this  action  can  be  maintained  upon 
the  policy.  It  becomes  important  to  inquire  whether  such  a 
contract,  made  by  an  agent  who  acts  as  the  agent  of  both  parties 
in  making  the  contract,  is  absolutely  void  at  common  law,  or 
w  hether  it  is  voidable  in  a  court  of  law  ;  or  whether  it  is  only 
voidable  in  a  court  of  equity.  The  rule  is  well  settled,  both  in 
England  and  this  country,  that  such  a  contract  is  voidable  in  a 
court  of  equity  at  the  election  of  the  principal.  The  principle  is 
illustrated  in  the  case  of  an  agent  employed  to  sell.  If  such  agent 
become  himself  the  purchaser  or  the  agent  of  another ;  or  if  he 
be  an  agent  to  buy,  and  he  become  himself  the  seller,  or  the 
agent  of  another  in  making  the  sale,  the  principal  may  avoid  the 
sale  or  the  purchase,  in  equity.  If  become  to  the  court  upon  a 
timely  application,  upon  the  fact  being  alleged  and  proved,  the 
court  will  presume  the  transaction  was  injurious  and  consequent- 
ly fraudulent ;  and  this  presumption  cannot  be  overcome  unless 
it  can  be  shown  that  the  principal,  furnished  with  all  the  knowl- 
edge the  agent  possessed,  gave  him  previous  authority  to  be- 
come purchaser  or  seller,  or  afterwards  assented  to  such  purchase 
or  sale.  {Campbell  v.  Walker,  5  Yes.  678.  1  Ves.jun.  287. 
Massey  v.  Davies,  2  id.  317.  1  Russ.  df  Mylne,  58.  2  Myl. 
6r  K.  819.  Story  on  Agency,  §§  9, 192,  211,  214,  210.  Dunl. 
Paley  on  Agency,  33,  34.  1  Mason,  341.  6  Pick.  196.  2 
.Tohn.  Ch.  252.  5  id.  388.  Hopk.  Ch.  515.  9  Paige,  237. 
4  Con.  R.  717.  5  Lond.  Jurist,  18.  Smiths  Merc.  Law,  101. 
13  Ves.  103.  8  id.  502.  9  id.  234.  12  id.  355.  3  Bro.  C.  C. 
119.  5  Paige,  650.  2  Mylne  Sf  Cr.  374.  Liver,  on  Agency, 
423.     4  Mylne  ^-  Cr.  134.     6  Ves.  625.     1  Story's  Eq.  Jar. 


MADISOK— SEPTEMBER,  1854.  471 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co. 

§J315,  316.  2  Mason,  369.  1  Jac.  ^  Wal.  294.  1  John.  Ch. 
27.  2  id.  394.  3  Ves.  740.  4  Z>e/ito,  575.  Angell  on  Fire  and 
Life  Ins.  454,  455.  Parsons  on  Contracts,  74.  75.)  The  rule 
seems  to  be  founded  on  the  danger  of  imposition  in  such  cases, 
and  the  presumption  which  a  court  of  equity  indulges  of  the 
*existence  of  fraud  which  is  inaccessible  to  the  eye  of  the  court, 
and  consequently  in  equity  such  agreements  are  regarded  as 
constructively  fraudulent.  (9  Paige,  242.  4  Kcnfs  Com, 
438,  3c?  ed.)  The  rule  is  a  well  settled  one,  and  the  presump- 
tion is  not  an  unreasonable  one  in  a  court  governed  by  the  prin- 
ciples of  equity.  The  principal  in  fact  has  bargained  for  the 
exercise  of  all  the  skill,  ability  and  industry  of  his  agent,  and 
he  is  entitled  to  demand  the  exertion  of  this  in  his  own  favor. 
{Parsons  on  Cont.  74,  75.)  Where  the  igent,  unbeknown  to 
his  principal,  is  acting  equally  in  behalf  of  the  other  party, 
the  presumption  is  not  an  unreasonable  one.  This  principle, 
however,  like  the  one  that  a  trustee  cannot  be  the  purchaser  of 
an  estate,  is  a  mere  rule  of  equity.  If  the  proper  forms  have 
been  observed,  the  conveyance  is  good  at  law,  and  the  title  passes. 
The  contract  is  not  void,  but  only  voidable.  (5  Metcalf,  467. 
5  John.  43,  48.  1  Bing.  396,  400,  401.  5  Ves.  678.  13  id. 
603.  7  Moure,  315.  5  Pick.  521.  3  Ves.  740,  751.  2  John. 
Ch.  740,  751.  9  Ves.  248.  10  id.  381.  14  John.  414,  415. 
2  Gill  Sf'  John.  227.  4  id.  376.  3  Harr.  l^  John.  38.  Par- 
sons on  Cont.  75,  76,  note  j.  1  Peters'  C.  C.  R.  368.  6  Halst. 
585.  8  Cowen,  361.)  No  case,  I  apprehend,  can  be  found 
where  a  court  of  law  has  pronounced  sucli  a  conveyance  abso- 
lutely void.  (14 /wA//.  418.  5  id!.  48.  Mackintosh  y.  Barber, 
1  Bing.  50.  7  Moore,  315.  5  Pick.  519,  521.  5  Mete.  467.) 
The  rule  of  which  we  have  been  speaking  is  applicable  to  all 
persons  placed  in  situations  of  trustor  confidence  Avith  reference 
to  the  subject  matter  of  the  contract,  and  embraces  trustees,  ex- 
ecutors, administrators,  guardians,  agents  and  factors,  attorneys, 
solicitors,  &c.  It  embraces  all  who  come  within  the  principle. 
(9  Paige,  241.)  There  is  no  such  rule,  in  equity  even,  as  that 
a  per.son  standing  in  such  trust  relation,  cannot  himself  buy  at 
his  own  sale,     He  may  purchase  and  take  the  title,  subject  how- 


472  CASES  IN  THE  SUPEEME  COURT. 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co. 

ever  to  the  option  of  the  cestui  que  trust,  if  he  come  in  a  rta 
sonable  time,  to  have  the  sale  declared  invalid.  {Campbell  v, 
Walker,  5  Ves.  678,  and  cases  note  a.  Lister  v.  Lister,  6  id. 
631.  E.T  parte  Lacey,  6  id.  625.  15  Pick.  31.  7  id.  1.  10 
id.  77.  2  John.  Ch.  252,  261,  266.  4  Gill  .j-  JbA/i.  376.  Par-^ 
sons  on  Cont.  76.)  It  is  not  important  to  inquire  whether  the 
executory  contract  made  by  an  agent  who  acts  and  contracts  for 
l)oth  parties  can  be  avoided  in  a  court  of  law  ;  for  in  this  court 
the  defendant  may  make  any  defense  which  he  may  have,  be  it 
legal  or  equitable ;  and  there  is  no  doubt  the  defense  insisted 
on  in  this  case  is  a  good  one  if  the  defendants  can  be  allowed 
to  set  it  up  under  the  answer  which  he  has  interposed.  The 
complaint  alleges  that  on  or  about  the  6th  June,  1852,  the  plain- 
tiffs procured  the  defendants  to  insure,  or  reinsure  the  plaintiffs 
to  the  amount  of  $2000  upon  this  propert}'  insured  by  the  plain- 
tiffs, and  that  the  defendants  in  consideration  of  ten  dollars  to 
them  paid  by  the  plaintiffs,  did  make  and  execute  a  policy  of 
insurance  to  the  plaintiffs,  and  caused  tiie  same  to  be  signed  by 
their  president,  James  M.  Marvin,  and  to  be  attested  by  their 
secretary,  J.  M.  Wheeler,  and  delivered  the  same  to  the  plain- 
tiffs, and  that  the  same  was  duly  countersigned  by  the  defend- 
ants' agent,  George  F.  Stevens,  who  was  duly  authorized  for  that 
purpose,  (fcc.  The  following  are  the  only  allegations  in  the  an- 
swer upon  which  a  defense  can  claim  to  be  predicated :  "  And 
the  defendants  further  answering  deny  that  on  or  about  the  6th 
day  of  June,  1852,  the  said  plaintiffs  procured  these  defendants 
to  insure,  or  reinsure  the  said  plaintiffs  as  stated  in  the  com- 
plaint, and  deny  that  they  made  and  executed  a  policy  of  insur- 
ance or  delivered  the  same  to  the  plaintiffs  as  stated  in  said 
complaint,  and  deny  that  Geo.  F.  Stevens  was  the  agent  of  the 
defendants,  or  was  authorized  to  countersign  the  policy  of  insur- 
ance mentioned  and  set  forth  in  the  complaint."  The  evidence  in 
the  case  shows  that  Stevens  was  the  duly  constituted  agent  of  the 
defendants  for  making  contracts  of  insurance,  and  that  the  defend- 
ants, for  that  purpose,  had  furnished  him  with  blank  insurance 
policies  signed  by  the  president  and  secretary  of  the  defendants, 
and  that  Stevens,  as  such  agent  of  the  defendants,  made  the  said 


MADISOJf— SEPTEMBER,  1854.  473 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co. 

contract  of  insurance  and  issued  the  said  policy  of  insurance  for 
and  in  behalf  of  the  defendants.  The  real  ground  of  defense 
therefore  is,  not  that  the  defendants  did  not  make  such  a  policy 
of  insurance  to  the  plaintiffs,  for  they  did  make,  through  their 
agent,  just  such  a  contract  as  is  alleged  in  the  complaint.  Nor 
is  the  real  ground  of  the  defense  that  Stevens  was  not  the  agent 
of  the  defendants,  authorized  to  countersign  the  policy.  The 
real  defense  to  the  action  is,  that  notwithstanding  such  a  contract 
has  been  made  by  the  defendants,  through  their  general  agent 
for  making  contracts  of  insurance,  and  countersigned,  yet  that 
the  contract  in  the  case  under  consideration  is  not  binding  nnon 
the  defendants,  because  the  same  was  fraudulently  entered  into 
by  Stevens,  their  agent,  he  acting  in  the  same  matter  as  agent 
of  the  plaintiffs.  Not  that  such  a  contract  is  absolutely  void, 
but  that  the  defendants  may  avoid  it  for  the  reasons  above  stated. 
I  do  not  think  such  a  defense  can  be  interposed  under  this  an- 
swer. The  rule  is  well  settled  under  both  our  former  and  pres- 
ent system  of  pleadings,  that  no  proof  can  be  offered  of  facts  not 
put  in  issue  by  the  pleadings."  The  reason  of  the  rule  is,  that 
the  adverse  party  may  be  apprised  against  what  suggestion  he 
i3  to  prepare  his  proofs.  (2  Cornst.  361,  506,  and  cases  there 
referred  to.)  This  rule  is  equally  applicable  to  the  defendant 
who  makes  a  defense  by'answer,  and  it  requires  him,  besides 
answering  the  plaintiff's  case  made  by  his  complaint,  to  state  in 
Lis  answer  any  matter  of  defense  of  which  he  intends  to  avail 
himself;  and  he  cannot  avail  himfeelf  of  such  matter  of  defense 
if  it  be  not  set  up  in  his  answer.  (2  Cornst.  506.)  Facts  proved 
but  not  pleaded  are  not  available  to  the  party  proving  them  ;  for 
the  court  pronounces  its  judgment,  "'  secundum  allegata  ct 
frohataP  (2  Cornst.  506.  2  Selden,  179.)  If  a  party  would 
avoid  a  contract  for  fraud  he  must  set  up  such  defense  in  his 
answer.  {Bailey  v.  Ryder,  1  Selden,  notes,  15.  4  Barb.  272. 
6  John.  5G5,  12  Barb.  348.)  In  Imham  v.  Child,  Ld.  Thur- 
low  would  not  listen  to  any  evidence  that  went  to  prove  a  deed 
fraudulent  because  there  was  no  allegation  of  fraud  in  the  bill. 
(1  Bro.  C.  C.  91.)  And  the  court  of  appeals  held  precisely  the 
Vol.  XX.  60 


474  CASES  I>T  THE  SUPREME  COURT. 


New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co. 


same  in  Bailey  v.  Ryder,  {supra.)     Such  defense  not  beini^ 
set  up  in  the  answer,  the  defendant  cannot  avail  himself  of  it. 

The  next  objection  to  the  plaintiffs'  right  of  recovery  in  this 
case  is,  that  the  insurance  policy  was  not  binding  upon  the  de- 
fendants for  the  reason  that  the  premium  was  not  paid.  The 
conditions  are,  by  an  express  provision  in  the  policy,  made  a 
part  of  the  contract.  (6  Wend.  488.)  And  they  have  there- 
fore, the  same  force  and  effect  as  if  contained  in  the  body  of 
the  policy.  (2  De?no,  75.)  The  second  condition  annexed  is, 
that  "  110  insurance  whether  original  or  cmitinued,  shall  be 
binding  until  the  actual  payment  of  the  premium.^'  This  is  a 
condition  in  the  policy,  and  a  condition  in  a  fire  no  less  than  in  a 
marine  policy,  not  complied  with,  defeats  the  policy.  (1  Phil, 
oh  Ins.  416.  2  Detiio,  75,  81.  5  id.  32G.)  In  the  present  case 
the  premium  was  not  in  fact  paid  to  Stevens  till  after  the  fire. 
The  money  was  in  the  bank,  under  the  control  of  Mr.  Olcott,  the 
cashier,  deposited  to  the  credit  of  the  treasuer  of  the  plaintiffs, 
and  Mr.  Olcott  told  Stevens  he  could  have  the  money  at  the 
time  the  arrangement  for  the  insurance  was  made,  and  Stevens 
told  him  to  let  it  lie,  and  when  he  wanted  the  money  he  would 
draw  for  it.  The  money  was  not  in  fact  drawn  by  him  till  after 
the  fire,  and  from  the  7th  to  the  10th  of  July.  Olcott  was  in 
the  habit  of  receiving  and  paying  out  the  premiums  for  the 
plaintiffs  and  acted  in  behalf  of  the  company.  He  had  there- 
fore. I  am  inclined  to  think,  authority  to  pay  out  the  moneys 
in  deposit  belonging  to  the  plaintiffs  for  such  object,  and  would 
at  any  time  have  paid  this  premium  upon  Mr.  Stevens's  check, 
had  he  wished  to  draw  it ;  but  Stevens  preferred  to  hafe  the 
money  remain  in  the  bank,  as  that  was  the  place  where  he  made 
his  deposits,  until  he  wished  to  make  his  remittance  to  the  de- 
fendants. Stevens,  therefore,  chose  to  waive  a  strict  compH- 
anco  with  this  condition  in  the  policy,  and  trust  to  the  cashier 
paying  his  check,  knowing  that  the  cashier  had  money  in  de- 
posit belonging  to  the  plaintiffs  which  he  was  authorized  to 
apply  to  such  purposes.  I  think  Stevens  had  authority  to 
waive  compliance  Avith  this  condition  in  the  policy.  (1  Phil,  on 
Ins.  22,  23,  §§  23,  24.)     And  that  he  did  so  is  most  manifest 


MADISON— SEPTEMBEPw,  1854.  475 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co. 

But  the  money  was  paid  to  Stevens  after  the  fire.  He  ivas  the 
defendants'  agent.  His  authority  was  not  revoked,  and  the 
money  was  received  before  the  disapproval  of  the  insurance. 
I  am  inclined  to  think,  therefore,  the  defendants  are  bound ; 
for  although  both  the  contract  and  policy  are  subsequent  to 
the  destruction  of  the  property,  the  insurer  may  be  bound. 
(12  Wheat.  408.  4  Cowen,  643,  665.)  But  again,  this  policy 
was  issued  and  delivered  to  the  plaintiffs,  and  the  premium  is 
acknowledged  in  the  policy  as  actually  received.  This,  upon 
the  authorities,  seems  to  be  held  as  conclusive,  and  to  bind  the 
insurer.  (3  Kent,  260,  M  ed.  1  Camp.  532.  3  Taunt.  493. 
1  Sandf.  S.  C.  R.  58.  1  Phil,  on  Lis.  §§  514,  515.  2  id. 
H  2116,  1849,  1993.) 

The  ^defendants  cannot  avail  themselves  of  the  objection 
taken  upon  the  trial  that  the  plaintiffs  did  not  give  such 
notice  of  the  loss  to  the  defendants,  as  is  required  by  the 
conditions  of  the  policy  ;  for  the  reason  that  np  such  issue  is 
presented  by  the  pleadings.  The  complaint  alleges  due  and 
proper  notice  given  of  said  loss  to  the  defendants  upon  the  re- 
ceipt of  notice  thereof,  by  the  plaintiffs,  and  this  averment  stands 
entirely  undenied  by  the  answer,  and  for  the  purposes  of  the 
action,  therefore,  is  deemed  admitted.  But  if  we  regard  the  issue 
as  made  by  the  pleadings,  the  notice  was  sufficient.  The  fire  oc- 
curred on  the  15th  of  June  and  the  plaintiffs  knew  of  it  on  the 
18th  and  they  sent  notice  to  the  defendants  by  mail  on  the  23d. 
This  was  a  sufficient  compliance  with  the  condition  of  thepolicy 
requiring  notice  of  the  loss  to  be  given  ^'- forthwith."  This 
provision  has  never  been  construed  literally  to  require  no- 
tice on  the  day.  It  has  always  been  held  that  due  dili- 
gence under  all  the  circumstances  was  all  that  was  required. 
There  must  not  be  any  unreasonable  delay  or  laches  in  giv- 
ing the  notice.  [Imnaii  v.  The  Western  Fire  Ins.  Co. 
12  Wend.  4:52.) 

We  will  now  proceed  to  consider  the  second  point  raised  by 
the  defendants  on  their  motion  for  a  nonsuit,  and  which  is 
that  Stevens  being  the  secretary  of  the  plaintiffs  they  were 
chargeable  with  notice  of  his  instructions  from  the  defendants. 


476  OASES  IN  THE  SUPREME  COURT. 

New  York  Central  Ins.  Co.  v.  National  Protection  Ins,  Co, 

and  consequently  with  notice  that  he  exceeded  his  author- 
ity. Stevens  being  the  general  agent  of  the  defendants  for 
effecting  insurances  in  their  behalf,  and  having  acted  in  the 
general  scope  of  his  authority  in  making  this  contract  of  insur- 
ance, he  clearly  bound  the  defendants,  notwithstanding  he  de- 
parted from  his  instructions  :  unless  the  plaintiffs  had  notice 
that  he  was  exceeding  his  authority.  (4  Cowen.  645.  2  Kent, 
620.  23  Wend.  18.)  The  rule  is  a  general  one  that  whatever 
is  known  to  the  agent  must  be  presumed  to.  be  knoAvn  to  the 
principal.  {Dunlap's  Paley  on  Agency,  260.)  I  am  inclined 
to  think,  however,  that  the  better  opinion  is,  that  this  rule  is 
confined  to  that  class  of  cases  where  the  knowledge  of  the  fact 
comes  to  the  agent  while  he  is  acting  for  his  principal  in  the 
course  of  the  very  transaction  which  becomes  the*  subject 
of  the  suit.  (2  Hill,  452.)  If  this  be  so,  then  the  fact  that 
Stevens  had  before  this  received  instructions  as  the  agent  of 
the  defendants  should  not  be  regarded  as  a  notice  to  the  plain- 
tiffs, although  Stevens  was  the  plaintiffs"  secretary  at  the  tiine. 
But  the  real  objection  was  not  raised  that  as  Stevens  acted  as 
the  ao-ent  of  the  defendants  in  makinf]'  this  verv  contract  and 
as  he  had  knowledge  of  the  instructions  this  was  known  to  the 
plaintiffs.  The  precise  points  wherein  he  exceeded  his  author- 
ity, or  did  not  follow  instructions  were  stated  on  the  motion  for 
a  nonsuit,  and  are,  first,  that  he  took  less  premium  than  was 
required  ;  2d,  that  he  exceeded  his  authority  in  not  requiring  an 
application,  and  in  not  sending  to  the  defendants  a  copy  of  the 
resolutions  of  the  plaintiffs,  and  also  in  ante-dating  the  policy 
to  the  6th  of  June.  It  is,  perhaps,  a  sufEcient  answer  to  these 
objections  to  say  that  none  of  these  defenses  are  set  up  in  the 
answer,  and  that  the  defendants  cannot  be  allowed  to  raise 
them,  for  this  reason.  (17  Wend.  199.  and  cases  referred  to 
above.) 

The  only  remaining  question  is,  whether  the  defendants  are 
liable  upon  this  policy  of  reinsurance  for  the  costs  and  expenses 
of  the  suit  brought  against  the  plaintiffs  by  the  Etna  Insurance 
Compan}'.  I  am  free  to  confess  that  upon  a  fair  construction  of 
the  defendants'  contract,  I  am  at  a  loss  to  see  upon  what  principle 


CHEMUNG-MAY,  1855.  477 


Briggs  V.  Briggs. 


they  can  be  held,  and  yet  the  authorities  would  seem  to  hold 
them.  (1  Arnoidd  on  Ins.  289.  2  Phil,  on  Ins.  749,  676, 
§  2145.  Hastie  v.  De  Peyster,  3  Caines,  190.  1  Stori/'s  C.  C. 
458,  462.  3  Kent,  278,  Sd  ed.)  I  am  of  opinion,  for  the  rea- 
sons stated,  that  the  judgment  should  be  affirmed. 

[Madison  General  Term,    September   12,    1854.     Gray,   Shanhland  and 
Mason,  Justices.] 


Briggs  vs.  Briggs  and  Vose.  li24ajA2\ 

22    651 

Where  goods  are  consigned  to  joint  factors  the  consignees  are  in  the  nature  of       ^*,  ^ 

co-obligors  and  each  is  liable  for  the  whole.  15a  471 

"  53a  342 

And  although,  upon  a  dissolution  of  the  partnership,  one  retires  and  the  other  sells 

the  goods  and  receives  the  avails,  yet  an  action  lies  against  both  for  not  ful- 
filling their  duty  in  selling  and  accounting ;  and  they  may  both  be  held  liable  for 
not  accounting. 
In  an  action  against  several  defendants  who  are  jointly  and  severally  liable, 
either  of  them  may  set  off  promissory  notes  executed  bj'^  the  plaintiff,  or  may 
avail  himself  thereof  by  way  of  counter-claim.  t 

APPEAL  from  a  judgment  rendered  at  a  special  term.     The 
facts  appear  in  the  opinion  of  the  court. 

Walbridge  ^  Finch,  for  the  plaintiff. 

Ferris  <^  Cushing,  for  the  defendants. 

By  the  Court,  Mason,  J.  The  defendants  were  copartners 
in  the  commission  business,  in  the  city  of  Albany,  and  the  plain- 
tiff consigned  to  them  as  such  commission  merchants,  a  quantity 
.of  lumber  to  sell  on  commission.  After  the  lumber  was  received 
and  a  part  of  it  sold,  the  copartnership  between  the  defend- 
ants was  dissolved  and  the  defendant  Briggs  ceased  to  have 
any  thing  to  do  with  the  business.  The  defendant  Vose  sold  the 
lumber  and  did  not  account  and  pay  over.     The  plaintiff  heard 


478  CASES  IN  THE  SUPREME  COURT. 

Briggs  V.  Briggs. 

of  the  dissolution  about  the  last  of  July  and  before  the  defendant 
Vope  had  sold  the  balance  of  the  lumber ;  but  it  does  not  appear 
from  the  evidence,  that  he  knew  whether  the  lumber  was  sold  or 
not.  The  question  presented  for  our  adjudication,  is  whether  the 
defendant  Briggs  is  jointly  liable  to  the  plaintiff  for  the  avails 
of  the  lumber  sold  by  Vose  after  the  dissolution  of  the  firm.  The 
defendants  are  both  liable.  If  goods  are  consigned  to  joint  fac- 
toi"s.  they  are  in  the  nature  of  co-obligors  and  are  answerable  for 
one  another  for  the  whole.  {Godfrey  v.  tSandf^rs,  3  Wilson, 
114.  6  Bac.  Abr.  563,  Bmiv.  cd.  tit.  Merchant  and  Merchan- 
dise, letter  B.  5  Com,.  Dig.  72,  note  /,  tit.  Merchant,  Factor, 
B.)  Joint  factors  are  liable  for  each  other's  receipt,  and  it  is 
no  discharge  of  one  of  two  joint  factors  that  the  business  was 
Avholly  transacted  by  the  other  with  the  knowledge  of  the  prin- 
cipal. [Godfrey  v.  Sanders,  3  Wilson,  73,  114.  Gore  v. 
Dawheney,  2  Leon.  75.  Cowper,  814,  i?i  note.  Dnnlap^s  Paley 
on  Agency,  52.  Story  on  Agency,  281.)  A  joint  consignment 
and  acceptance  of  the  goods  makes  each  liable  to  account  for  the 
whole.  {Dnnlap's  Paley  on  Agency,  53.)  And  although 
upon  a  dissolution  of  the  partnership  one  retires  and  the  other 
sells  the  goods  and  receives  the  avails,  yet  an  action  lies  against 
both  for  not  fulfilling  their  duty  in  selling  and  accounting,  and 
they  may  be  both  held  liable  for  not  accounting.  (  Wells  and 
others  v.  Ross,  7  Taunt.  403.  Diinlap's  Paley  on  Agency, 
53,  note  w.) 

Upon  the  trial  of  this  cause  the  defendant  Enos  Briggs  offer- 
ed in  evidence  as  an  offset  or  counter-claim  three  promissory 
notes  made  by  the  plaintiff,  and  payable  to  Enos  Briggs  or 
bearer ;  two  of  them  for  $117.56  each,  and  one  for  $100.  The 
execution  of  these  notes  was  admitted,  but  the  plaintiff's  coun- 
sel objected  to  their  being  received  in  evidence  or  allowed  by 
the  referee,  on  the  ground  that  they  were  not  a  proper  offset  or 
counter-claim  in  this  action.  These  notes  could  not  be  allowed 
as  a  set-off  prior  to  the  amendment  of  the  code  in  1852.  They 
were  not  a  legal  offset  under  the  revised  statutes.  I  am  in 
clined  to  think,  however,  that  they  are  admissible  a&  a  set-off  or 
counter-claim  under  §§  149,  150  of  the  code  as  amended  in  1852. 


OTSEGO— JULY,  1855.  479 


Partenheimer  v.  Van   Order. 


A.  counter-claim  is  defined  to  be  one  existing  in  favor  of  a  defendant 
iuid  against  a  plaintiif  between  whom  a  several  judgment  might 
be  had  in  the  action,  and  arising  out  of  one  of  the  specified 
causes  of  action  ;  and  the  2d  subdivision  provides  that  in  an 
action  upon  contract  any  other  cause  of  action,  arising  also  on 
contract,  and  existing  at  the  commencement  of  the  action,  shall 
be  a  counter-claim.  {Code,  §  150.)  The  only  restriction  is 
that  it  must  be  one  existing  in  favor  of  a  defendant  and  against 
a  plaintiff  between  whom  a  several  judgment  might  be  had  in 
the  action.  The  present  action  is  one  of  this  kind  as  is  ex- 
pressly held  in  the  case  of  The  People  v.  Cram  and  White, 
(8  Hoiv.  Pr.  R.  151.)  These  notes  should  have  been  allowed 
as  a   counter-claim  by  the  referee.     The  case  of  Parsons  and 

Wales  V.  Nash,  (8  How.  Pr.  li.  454,)  is  in  point,  and  determines 
the  very  question  presented  in  this  case.  It  is  true  that  is  a 
special  term  decision,  but  I  think  Judge  Marvin  has  given  the 
only  true  construction  to  this  section  of  the  code.  I  do  not  see 
how  it  can  be  read  otherwise.  The  judgmetJt  must  be  reversed 
and  a  new  trial  ordered;  costs  to  abide  the  event. 

[Chkmung  Genfral  Term,  May  8,  1855.     Shankland,  Gray  and  Mason, 
J  ustices.  ] 


Partenheimer  vs.  Van  Order.  20  479 

59    4» 
9h  520 

Where  cows,  belonging  to  several  owners,  are  found  in  the  garden  of  an  individ-  — ^ 

ual,  committing  a  trespass,  each  owner  is  liable  for  the  damage  done  by  hia 
own  cow,  and  for  no  more. 

And  in  the  absence  of  all  jjroof  as  to  the  amount  of  damage  done  by  each  cow, 
the  law  will  infer  that  the  cattle  did  equal  damage. 

APPEAL,  by  the   defendant,   from  a  judgment  of  a  county 
court. 

Bruyn  ^  Williams,  for  the  plaintiff. 
Walhridge  ^'  Finch,  for  the  defendant. 


480  CASES  IX  THE  SUPREME  COURT. 

Partenheimer  v.  Van  Order. 

By  the  Courts  Mason,  J.  This  is  an  action  of  trespass, 
brought  in  a  justice's  court,  to  recover  damages  for  the  defend- 
ant's cow  getting  into  the  plaintiff's  garden  and  destroying  his 
vegetables,  &c.  The  evidence  in  the  case  shows  that  the  de- 
fendant's cow,  with  some  nineteen  others,  was  found  in  the 
plain tiif's  garden,  and  that  the  whole  damage  done  by  all  of  the 
cows,  taking  the  highest  estimate  of  any  of  the  witnesses,  was 
$20.  The  jury  found  a  verdict  against  the  defendant  for  $20 
damages  ;  for  which  sum  the  justice  rendered  judgment,  with 
costs  of  suit.  The  defendant  appealed  to  the  county  court,  where 
the  judgment  of  the  justice  was  affirmed,  and  the  defendant  has 
appealed  to  this  court.  The  law  is  well  settled,  that  the  defend- 
ant is  only  liable  for  the  damages  done  by  his  own  cow,  and  not 
liable  for  the  damages  done  by  the  cows  of  others  jointly  with 
his  own.  (17  Wend.  562.  2  Conn.  R.  206.  2  Verm.  Rep.  9. 
1  Denio,  495,  501.  20  Pick.  477.)  In  cases  like  the  present,  the 
law  fixes  a  distinct  and  definite  rule  of  damages.  It  gives  to  the 
party  injured  his  direct  pecuniary  los,  sand  no  more.  [Greeiil. 
Ev.  §  253.  Sedg.  on  Dam.  37.  11  Barh.  370.)  In  this  case 
the  jury  either  mistook  the  rule  of  damages,  or  else  they  inten- 
tionally disregarded  it.  In  either  case  they  have  violated  a 
settled  principle  of  law.  The  party  was  as  much  entitled  tc 
have  this  rule  of  law  observed  in  the  trial  of  this  cause,  as  any 
other  upon  which  his  rights  depended.  It  will  not  do  to  say 
that  as  it  was  not  proved  that  the  other  cows  did  any  of  the 
damage,  the  judgment  therefore  should  be  affirmed-  The  only 
evidence  in  the  case  to  show  that  the  defendant's  cow  did  this 
damage,  consists  in  the  proof  that  his  cow  was  in  the  garden 
with  the  others,  and  that  the  damage  was  done  by  these  cows. 
In  the  case  of  Riidd  v.  iSheve?-,  (20  Pick.  479,)  in  considering 
this  question  of  damages  done  by  the  dogs  of  different  owners, 
the  court  say,  "//  ii  could  be  proved  what  damage  was  done  by 
one  dog  and  what  by  the  other,  there  would  be  no  difficulty,  and 
on  failure  of  such  proof  each  owner  might  be  liable  for  an  equal 
share  of  the  damage,  if  it  should  appear  that  the  dogs  were  of 
equal  power  to  do  mischief  and  there  were  no  circumstances  to 
vender  it  probable  that  greater  damage  was  done  by  one  dog 


ST.  LAWRENCE— SEPTEMBER,  1855.  48  f 

French  v.  New. 

than  by  the  other."  In  the  absence  of  all  proof,  it  seems  to  me 
that  this  is  a  sensible  rule,  and  that  we  should  infer  that  the  cattle 
did  equal  damage,  in  the  absence  of  any  proof  as  to  how  much 
was  done  by  each.  The  law  cannot  certainly  be  so  unreasonaole 
as  to  presume  that  one  cow  did  it  all.  The  judgments  of  the 
county  court  and  justice  must  be  reversed. 

[Otsego  General  Term,  Jnly  10,  1855.      Shankland,  Gray  and  Mason, 
J  ustices.] 


Luther  French  vs.  Philip  E.  New.  m  ^ 


Parties,  after  having  by  their  bonds  of  submission  to  arbitration,  required  the 
award  to  be  in  writing,  and  subscribed  by  the  arbitrators,  may  waive  that 
requirement,  by  parol,  and  receive  a  verbal  award,  which  will  be  binding 
on  both. 

Thus,  where  a  submission  required  the  award  to  be  made  in  writing  under  the 
liands  of  the  arbitrators,  subscribed  by  them  or  any  two  of  them,  and  attested 
by  a  subscribing  witness,  but  before  the  arbitrators  made  anj-  award,  the  par- 
ties said  to  them  they  had  substituted  other  writings  winch  they  had  drawn  up 

,  and  executed,  tinder  seal,  in  place  of  a  formal  award  in  writing,  and  that  all 
they,  the  parties,  wanted  to  know,  was  how  much  was  awarded,  and  they  could 
fix  the  amount,  in  the  instrument,  as  they  had  agreed ;  and  that  they  did  not 
want  the  award  in  writing,  but  wished  the  arbitrators  to  award  verbally;  it 
WAS  HELD  that  the  parties  had  waived  that  part  of  the  condition  of  the  submis- 
sion bond  Avhich  required  the  award  to  be  in  writing. 

Such  an  agreement  for  a  parol  award  operates  as  a  new  submission ;  and  the 
parties  are  estopped  from  saying  that  the  parol  award,  made  in  pursuance  of 
their  directions,  is  void. 

The  principle  that  he  who  prevents  a  thing  being  done,  shall  not  avail  himself  of 
the  non-performance  he  has  occasioned,  applies  to  such  a  case. 

Where  a  submission  was  in  writing,  under  seal,  to  hear  the  evidence  in  refeicnce 
to  a  certain  lease,  "  to  the  end  that  all  matters  in  controversy  in  that  behalf, 
between  the  parties,  should  be  finally  concluded,"  &c.,  and  a  subsequent  agree- 
ment between  the  parties  recited  that  they  had  agreed  "  to  submit  their  matters 
in  controversy"  to  arbitration ;  Held  that  it  was  the  intention  of  the  parties 
that  the  arbitrators  should  pass  upon  all  matters  in  reference  to  the  lease ; 
whether  all  the  rent  had  become  due  or  not ;  so  as  to  end  all  controversy  be- 
tween them  which  had  arisen,  or  might  arise,  out  of  that  instrument;  and  that 
consequently  the  award  was  not  void  although  it  embraced  the  rent  not  then 
due,  and  damages  subsequently  to  accrue,,  under  the  lease. 

Vol.  XX.  61 


M    548 

Hh  148 
28a  147 


482  CASES  IN  THE  SUPREME  COUKT. 

French  v.  New. 

Ifeld  also,  tliat  parol  evidence  that  the  rent  yet  to  become  due,  and  other  clahi  a, 
were  tak^n  into  consideration  by  the  arbitrators,  was  proper,  for  the  jiurpose 
of  showing  whether  the  arbitrators  took  into  consideration  matters  beyond  the 
'  submission,  or  not. 

Where  there  is  a  submission,  by  writing  under  seal,  of  all  matters  relating  to  a 
lease,  to  arbitration,  and  a  subsequently  executed  parol  agreement  between  the 
parties,  consenting  that  the  arbitrators  may  make  a  verho.l  award,  an  award 
by  parol  will  discharge  the  lease. 

Proof  that,  previous  to  a  submission  of  matters  respecting  a  lease,  the  rent  due 
thereon  &c.,  one  of  the  arbitrators  counseled  with  the  defendant,  and  told  him 
his  rent  was  too  high,  will  not  show  such  corruption,  partiality  or  gross  mis- 
behavior as  would  invalidate  the  award  at  law ;  and  is  therefore  inadmissible. 

Sucli  evidence  cannot  be  given  by  the  arbitrator  himself;  on  the  ground  that  it 
would  go  to  impeach  his  award. 

Where  a  submission  purported  to  be  made  pursuant  to  the  provisions  of  the  stat- 
ute for  determining  controversies  by  arbitration,  but  it  contained  no  clause 
agreeing  that  a  judgment  should  be  entered  in  a  summary  manner  upon  the 
award  to  be  made ;  Held  that  this  was  not  a  submission  under  the  statute. 
{I  R.S.  541.) 

rpmS  was  an  action  brought  to  recover  of  the  defendant  the 
X  last  two  installments  of  rent  due  upon  a  lease  under  seal. 
executed  by  the  defendant  to  the  plaintiff,  commencing  on  the 
1st  day  of  April,  1849,  and  ending  April  1, 1852.  The  plaintiif 
claimed  to  recover  the  amount  of  the  rent  and  interest,  and  also 
damages,  in  consequence  of  the  non-performance  by  the  defend- 
ant of  certain  covenants  in  the  lease.  The  execution  of  the 
lease,  which  was  dated  March  16,  1849,  was  admitted  by  the 
pleadings,  and  it  was  read  in  evidence  on  the  trial  at  the  Sara- 
toga circuit,  in  Oct.  1854.  The  defendant  set  up  in  his  answer, 
and  proved  on  the  trial,  that  after  the  first  and  before  the  second 
installment  of  rent  became  due,  on  the  27th  day  of  March,  1852, 
the  plaintiff  on  the  one  part,  and  the  defendant  George  E.  New 
on  the  other  part,  entered  into  arbitration  bonds,  dated  on  that 
day,  which  recited  that  a  controversy  existed  between  the  par- 
ties, and  that  the  arbitrators  were  "to  hear  the  evidence,  testi- 
:niony  and  proofs  (exclusive  of  any  other  witness)  of  thfe  aforesaid 
parties,  in  reference  to  a  certain  lease  given  on  or  about  the 
IQt/i  day  of  March,  1849,  6y  Luther  French  to  Philip  E.  New," 
and  concluded  as  follows  :  "  So  as  the  award  of  the  said  arbitra 
tors  be  made  in  writing,  subscribed  by  them  or  any  two  of  them, 


ST.  LAWRENCE— SEPTEMBER.  1855.  483 


French  v.  New 


tnd  attested  by  a  subscribing  witness,  ready  to  be  delivered  to 
the  said  parties  on  or  before  the  10th  day  of  April,  1852."  "  To 
the  end  that  all  matters  in  controversy  in  that  behalf  betwee?i 
the  said  pai^ties  shall  be  finally  concluded,  pursuant  to  the  pro- 
visions of  the  statute,  for  determining  controversies  by  arbi- 
tration." The  defendant  also  gave  in  evidence  two  instruments 
in  writing  bearing  even  date  with  the  arbitration  bonds,  but  ev- 
idently executed  after  them,  inasmuch  as  they  recited  the  exe- 
cution of  said  bonds  of  submission,  except  that  Lyndes  Emerson 
Avas  named  in  said  instruments  as  one  of  the  arbitrators,  instead 
of  Levi  Rowley  These  instruments  provided  the  mode  and 
times  of  payment  of  the  sum  that  should  be  awarded  to  the 
plaintiff,  instead  of  leaving  it  to  be  fixed  and  regulated  in  the 
award,  and  only  making  it  necessary  for  the  arbitrators  to  aAvard 
the  sum  which  they  should  decide  the  defendant  should  pay  to 
the  plaintiff.  The  arbitrators  did  not  make  any  award  in  writ- 
ing. But  it  appeared  in  evidence  that  they  all  met  and  were 
sworn  as  arbitrators,  in  the  latter  part  of  March,  1852,  and  that 
the  parties  had  a  hearing  before  theni.  The  lease  was  produced, 
before  them,  and  the  matters  were  finally  submitted  to  them  on 
the  31st  day  of  March,  1852.  The  parties  made  their  state- 
ments, among  Avhich  the  plaintiff  said  he  claimed  for  rent  due  on 
the  lease,  and  the  last  year's  rent ;  also  for  clover  seed,  tim- 
othy seed,  8  acres  of  rye,  a  stack  of  oats,  and  wood  delivered 
at  the  door.  The  defendant  insisted  that  he  paid  too  much  rent 
for  the  farm.  He  also  made  claims,  on  his  part.  At  the  time 
they  submitted  and  before  the  parties  left  the  room  to  the  arbi- 
trators, the  plaintiff  told  them  to  mix  it  up  in  any  way  to  do 
justice  to  themselves.  About  the  time  the  parties  left  the  room, 
Green,  one  of  the  arbitrators,  said  he  supposed  the  award  must 
je  in  writing.  The  plaintiff  said,  "  Yo?«  need  ?iot  bring  the 
award,  or  judgme?it,  in.  in  icriting.  We  have  a  writing  drawn 
up,  and  we  merely  want  to  know  how  much  the  award  is,  and 
we  will  fix  the  award  on  the  instrument  as  we  have  agreed.  All 
we  want  the  arbitrators  to  do  is  to  fix  the  amount,  and  declare 
it  verbally,"  The  defendant  also  said,  at  the  same  time,  that 
the  award  need  not  be  in  writins;.     The  arbitrators  were  then 


484  OASES  JN  THE  SUPREME  COURT. 

French  v.  New. 

left  alone,  and  after  they  had  agi'eed  upon  their  aAvard  they  no- 
tified the  parties,  who  appeared  before  them,_and  the  j\\Tard, 
which  ivas  unanimous,  was  declared  in  their  presence.  The 
arbitrators  awarded  that  the  defendant  should  pay  the  plaintiff 
$260.  And  the  plaintiff  was  to  pay  the  arbitrators.  He  paid 
two  of  them  immediately,  and  the  third  one  afterwards.  After 
the  award  was  declared,  the  plaintiff  said  he  would  see  his  attor- 
ney, Mr.  Hoag.  The  latter  soon  after  came  into  the  room,  and 
drew  up  and  served  on  the  arbitrators  a  wsvritten  revocation  of 
the  submission.  The  plaintiff  offered  to  show  by  one  of  the  ar- 
bitrators, that  previous  to  the  submission  he,  the  arbitrator,  had 
counseled  with  the  defendant  and  told  him  his  rent  was  too  high. 
This  was  objected  to  by  the  defendant's  counsel  and  rejected  by 
the  judge,  and  the  plaintiff's  counsel  excepted.  The  defendant 
offered  to  prove  that  he  had  tendered  full  performance  of  the 
award,  on  his  part,  according  to  the  terms  of  the  agreement  ex- 
ecuted after  the  submission  bonds.  This  testimony  was  objected 
to  as  immaterial,  and  excluded  by  the  judge.  The  evidence  be- 
ing closed,  the  judge  inquired  of  the  counsel  if  there  was  any 
question  of  fact  which  either  of  them  desired  to  submit,  in  case 
he  should  hold  the  award  valid,  and  Avas  answered  there  was  not. 
The  defendant's  counsel  then  moved  the  court  to  nonsuit  the 
plaintiff;  which  motion  was  granted,  on  the  ground  that  the 
award  was  valid  and  was  a  bar  to  the  action.  The  plaintiff's 
counsel  excepted,  and  the  court  ordered  that  the  case  be  heard  in 
the  first  instance  at  general  term.  A  motion  was  now  made  to 
set  aside  the  nonsuit,  and  for  a  new  trial. 

J.  T.  Carr  and  A.  Pond^  for  the  plaintiff. 

Merrill  <^  McKindlei/,  for  the  defendant. 

Bi/  the  Court,  C.  L.  Allen,  P.  J.  It  is  insisted  on  the 
part  of  the  plaintiff,  that  in  order  to  make  a  valid  award,  the 
arbitrators  must  pursue  the  authority  contained  in  the  submis- 
sion, strictly,  as  to  the  form,  manner  and  time  of  its  execution. 
There  is  little  doubt  but  that  the    parties  could  give  to  tha 


ST.  LAWRENCE— SEPTEMBER,  1855.  43.3 

French  v.  New. 

arbitrators  such  powers  as  they  pleased,  and  that  they  (the  arbi- 
trators) were  required  to  do  as  they  were  directed  by  the  sub- 
mission bond.  This,  as  a  general  principle,  cannot  be  disputed. 
(Allen  V.  Galpin,  9  Barb.  246,  250.  11  John.  133.  6  id.  14. 
Cowcn  4"  HilVs  Notes,  1030.)  The  great  question  in  the  case 
is,  could  the  parties,  after  having  required  the  award  to  be  in 
writing,  waive  that  requirement  by  parol,  and  receive  a  verbal 
award  which  would  be  binding  on  both  1  In  the  case  of  Perkins 
v.  Wing,  (10  John.  143,)  the  condition  of  the  bond  was  that 
the  award  should  be  in  Avriting  ready  to  be  delivered  to  the 
'parties,  or  any  of  them  requiring  the  same,  on  or  before  the 
first  of  September.  The  arbitrators,  before  the  day,  made  their 
award  in  writing,  and  read  it  {)ver  to  the  parties,  who  appeared 
to  be  satisfied,  and  one  of  them  paid  a  part  of  the  award,  and 
did  not  then  demand  a  duplicate,  but  on  the  day  did  demand  a 
duplicate,  or  copy,  which  was  refused.  In  an  action  on  the 
award,  the  plea  was  no  award.  The  court  said,  although  the 
fact  of  demand  and  refusal  should  have  been  pleaded  specially, 
yet  if  it  had  been  properly  in  issue,  the  evidence  was  sufficient 
to  show  that  the  defendants  had  admitted  a  delivery  or  waived 
the  necessity  of  any.  That  when  the  award  was  read  and  declared, 
and  the  defendant  promised  to  perform  it,  and  did  in  fact  per- 
form it,  that  was  a  consummation  of  the  business,  and  the  defend- 
ants were  concluded  from  alleging  afterwards,  that  the  award  was 
not  delivered  according  to  the  condition  of  the  bond.  That  they 
were  bound  to  speak  then,  at  the  time  of  the  publication,  and  when 
the  arbitrators  were  upon  the  point  of  concluding  and  dispersing, 
if  they  required  further  notice,  publication  and  delivery.  That 
no  circumstances  could  be  stronger  from  which  to  infer  an  acqui- 
escence in  that  mode  of  delivery,  and  a  waiver  of  the  necessity 
of  one  more  formal.  The  case  of  Sellick  v.  Adams,  (15  John. 
197,)  decided  that  where  sworn  copies  of  the  award  are  delivered 
to  the  parties,  by  the  arbitrators,  and  received  without  objec- 
tion, this  will  be  deemed  a  waiver  of  their  right  to  receive  the 
original  award.  So  it  was  held  to  be  a  waiver,  if  one  of  the 
parties  should  say  to  the  arbitrators  they  need  make  no  couti- 
terpart;  as   he  would  not  receive  it.     {Buck  v.  Wadsworth,  1 


486  CASES  IN  TUE  SUPREME  COURT. 

French  v.  New. 

Hill^  321,  citing  Avith  approbation  Sellick  v.  Adams.  And  see 
Howard  v.  Sexton,  1  Denio,  440.)  The  case  in  1  Hill  was 
after  the  revised  statutes  regulating  arbitrations,  and  j^et  it 
referred  to  and  sanctioned  the  cases  above  cited  from  Johnson. 
It  was  probably  the  intention  of  the  parties  in  this  case  that 
the  arbitration  should  be  under  the  statute.  (2  R.  tS.  541,  §  1, 
et  scq.)  This  is  pretty  evident  from  the  concluding  clause  in 
the  submission  bonds,  providing  that  all  matters  in  controversy 
between  the  parties  should  be  finally  concluded  ^-pitrsuatit  tc 
the  provisions  of  the  statute  for  determining  controversies  l)y 
arbitration."  And  yet  there  was  no  clause  in  the  submission 
agreeing  that  a  judgment  should  be  entered  in  a  summary  man- 
ner upon  the  award  to  be  made  in  pursuance  of  the  submission,  as 
is  required  by  the  section  just  quoted.  This  was  held  to  be  ne- 
cessary by  the  court  of  errors,  in  the  case  of  Wells  v.  Lain, 
(15  Wend.  99.)  And  the  chancellor,  in  Bloomer  v.  Sherman, 
(5  Paige,  575,  578,)  intimates  that  such  was  the  opinion  of  the 
court  in  the  former  case,  though  he  differed  from  a  mnjority  of 
the  court,  and  decided,  in  the  latter  case,  that  the  23d  section 
of  the  act,  declaring  that  neither  party  shall  have  poAver  to  re- 
voke.the  powers  of  the  arbitrators,  after  the  cause  shall  have  been 
finally  submitted  to  them  by  the  parties,  was  applicable  to  all 
cases  of  submission  to  arbitration.  Cope  v.  Gilbert,  (4  Denio, 
347,)  sanctions  this  last  construction.  We  must  follow,  however, 
the  decision  of  the  court  of  errors,  and  hold,  with  that  court, 
that  this  was  not  a  submission  under  the  statute.  It  was  how- 
ever in  Avriting,  under  seal,  and  required  the  award  to  be  in 
writing,  subscribed  by  the  arbitrators  or  any  two  of  them.  And 
the  question  returns,  could  this  requisition  be  waived,  and  the 
award  be  made  verbally,  as  requested  and  directed  by  the  par- 
ties? It  does  not  seem  to  be  disputed  that  a  parol  submission 
may  be  followed  by  a  parol  award,  or  that  a  submission  under 
seal  may  provide  that  the  aAvard  may  be  made  in  writing  under 
the  hand  of  the  arbitrators,  without  seal.  {Kyd  on  Awards, 
116,  227,  291.  2  Greenl.  §  69,  t}-c.  2  Hill,  271,  and  votes.) 
Where  the  submission  does  not  require  a  written  award,  a  ver 
Lial  award  is  good,  at  common  law.     (2  Barb.  Ch.  Rej).  430.) 


ST.  LAWRENCE— SEPTEMBER,  1855.  437 

French  r.  New. 

The  submission  in  the  present  case  required  the  award  to 
be  made  in  writing  under  the  hands  of  the  arbitrators,  sub- 
scribed by  them  or  any  two  of  them,  and  attested  by  a  sub- 
scribing  Avitness,     But    before   the    arbitrators    awarded,    the 
parties,  and  particularly  the  plaintiff,  said  to   them  they  had 
substituted  other  writings,  which  they  had  draAvn  up  and  ex- 
ecuted   under   seal,    in   place    of  a  formal    award   in    writing, 
and  all  they  wanted   to  know  was  how  much   the  arbitrators 
awarded,  and  they  could  fix  the  amount,  in  the  instrument,  as 
they  had  agreed ;  that  they  did  not  wish  the  award  in  writing, 
but  wished  the  arbitrators  to  award  verbally.     The  instruments 
which  they  had  thus  executed  and  delivered  to  each  other  after 
the  submission  bond,  after  reciting  the  submission,  promised 
and  agreed  how  the  amount  awarded  by  the  arbitrators  to  be 
due  from  the  defendant  to  the  plaintiff  should  be  paid  ;  leaving 
it  only   necessary   for  'the    arbitrators  to  report    the    amount 
which  they  should  find.     They  undoubtedly  directed  the  arbi- 
trators to  award  the  sum  found,  verbally,  lest  a  written  award 
should,  as  it  well  might,  interfere  with  their  last  agreement. 
By  those  acts  and  directions  I  think  they  waived  that  part  of 
the  condition  of  the  submission  bond  requiring  the  award  to  be 
in  writing.     {/See  cases  before  died,  and  2  Barb.  316  ;  3  Jo'in. 
528;  2  Cowen  tj*  HilVs  Notes,  1030,  ayid  cases  cited.)     In 
Bloomer  v.  Sherman^  where  the  time  for  making  the  award  had 
been  extended,  the  chancellor  remarked  that  under  a  submis- 
sion by  bond  the  time  might  be  enlarged,  by  an  agreement  not 
under  seal.     And   although  in  such  case  an  action  upon  the 
bond  itself  could  not  be  maintained,  yet  that  the  party  injured 
by  the  breach  of  the  agreement,  or  the  non-performance  of  the 
award,  must  seek  his  remedy  by  a  suit  upon  the  submission  im- 
plied ir.  the  new  agreement  taken  in  connection  with  the  bond, 
or  by  an  action  upon  the  award  made  in  pursuance  of  such  sub- 
mission.    And  such  was  the  doctrine  in  Freeman  v.  Adams, 
(0  John.  115,)  and  Armstrong  v.  Hasten,  (11  id.  189.)     See 
also  3  T.  R.  542,  note;  2  Wend.  587;  8  John.  392 ;  4  Cowen, 
566.)     The  case  of  Fleming  v.  Gilbert,  (3  John.  528,)  is  a  very 
Htrong  one  in  favor  of  this  doctrine  of  waiver,  which  the  court 


,\gQ  CASES  IN  THE  SUPfiEME  COURT. 

French  v.  New. 

say  must  always  rest  in  parol.  And  I  do  not  find  that  tie  de- 
cision in  that  case  has  ever  been  shaken,  but  it  was  recognized  as 
good  law  in  The  Mayor  of  Neio  York  v.  Butler,  (1  Barb.  S,  C. 
Rep.  325;)  and  by  the  court  in  this  district,  in  the  case  of  £'5- 
niond  V.  Van  Benschoten,  (12  Barb.  366,  370.) 

But  it  is  argued  by  the  plaintiff's  counsel  that  if  the  trans- 
action, modified  as  it  was  by  the  parties,  should  be  held  by 
the  court  to  amount  to  a  parol  award,  or  a  parol  submis- 
sion  and  award,  and  the  remedy,  if  any,  would  be  upon 
the  new  agreement,  or  an  action  upon  the  award  founded 
upon  it,  yet.  that  in  this  case,  the  lease,  being  a  specialty, 
could  not  be  changed  or  modified  by  the  parol  submission  and 
award.  The  general  principle  for  which  the  counsel  contends 
is  undoubtedly  correct ;  as  for  instance,  where  by  law  the  mat- 
ter awarded  is  not  arbitrable,  or  where  from  the  subject  of  arbi- 
tration a  writing  is  necessary  to  pass  the  right  to  the  thing  in 
demand,  or  to  destroy  the  demand.  (2  Cow.  <^*  Hill's  Notes,  1025. 
Lagsdon  v.  Roberts,  3  Monroe,  257.  Kyd  on  Awards.  52,  53.) 
But  Mr.  K3'd  remarks  that  most  of  the  cases  which  cannot 
thus  be  submitted  of  themselves,  may,  when  joined  with  other 
things  of  an  uncertain  nature ;  because  there  is  then  an  uncer- 
tainty about  the  whole  of  the  disputes;  as  for  instance,  debt 
for  arrears  of  rent  ascertained  by  a  lease  for  years.  And  it  is 
to  be  remarked  here,  that  there  is  an  evident  distinction  be- 
tv.een  maintaining  an  action  on  the  bond,  where  there  has  been 
a  parol  modification  of  it,  and  setting  up  the  award  as  a  dis- 
charge from  a  strict  compliance  with  the  covenants  in  the  lease. 
In  relation  to  the  title  to  land,  it  is  well  said  that  the  decision 
of  arbitrators  cannot  convev  the  title  to  land,  but  an  award 
upon  the  title  is  binding  upon  the  parties,  and  estops  the  plain- 
tiff or  defendant  from  disputing  the  title  affirmed  by  the  award. 
'•  An  award,  whether  it  relates  to  the  title,  the  possession,  or 
the  location  or  boundaries  of  land,  has  not  the  operation  of  a 
conveyance,  but  the  parties  are  concluded  by  their  agreement 
from  disputing  the  location  or  title  as  settled  by  the  arbitrators. 
Its  operation  is  in  the  nature  of  an  estoppel  The  award  in 
such  case   is   not  offered  as  evidence  of  title,  out   to  prevent 


ST.  LAWRENCE-SEPTEMBER,  1855.  459 

French  v.  New. 

either  party  from  setting  up  a  title  which  had  been  negotiated 
hy  the  arbitrators."  (2  Cowen  ^'  HilVs  Notes,  1037.  Jackson 
V.  Gagcr,  5  Coiveii.  383,  387.  Coa;  v.  Jagger,  2  id.  638.  Rob- 
erlson  v.  McNiel,  12  Wend.  578.  Milchell  v.  5^^.s•^.  Y  Cowen, 
185.     />ary'5  ^:r'r5  v.  Fa?/?,  7  Crar^cA,  171,  176.) 

It  is  insisted  that  the  orio-inal  submission  having  been  in 
writing  under  seal,  and  the  alleged  waiver  or  agreement  dis- 
pensing with  a  written  award,  having  been  made  before  any 
breach  of  the  conditions  of  th'e  submission  bond,  was  a  nullity, 
within  the  case  0^  Howard  v.  Cooper,  (1  Hill,  44.)  I  am  aware 
that  Judge  Cowen  in  that  case  remarked  that  it  was  out  of  the 
power  of  both  parties  to  alter  the  legal  effect  of  the  sealed  sul> 
mission  or  a  sealed  contract,  without  seal.  In  that  case  an 
item  contained  in  the  submission  had  been  withdra^vn  from  the 
consideration  of  the  arbitrators,  by  the  agreement  of  the  par- 
ties, by  parol,  and  was -not  passed  upon  by  them;  and  yet  the 
court  held  that  it  could  not  thus  be  withdrawn,  and  that  the 
award  Was  conclusive  upon  it.  It  may  be  said  here,  in  the  first 
place,  that  the  waiver  was  not  entirely  by  parol,  but  by  new 
instruments  in  writing  executed  by  the  parties  undci  seal ;  and 
secondly,  that  the  point  of  estoppel  was  not  presented,  or  passed 
upon  by  the  court.  In  Coleman  v.  Wade,  (2  Seld.  44,)  the 
award  was  in  writing  not  under  seal,  relative  to  the  guaranty 
of  payment  of  rent  reserved  by  lease  under  seal,  and  it  was  ar- 
gued that  the  claim  was  not  merged  in  the  submission  bond  and 
award.  The  court  held  otherwise,  and  decided  that  the  award 
would  operate  as  a  bar  to  an  action  commenced  on  the  lease, 
and  the  guarantors  were  discharged.  It  may  be  said,  tooj 
within  the  principle  of  Allen  v.  Jaquish,  (21  Wend.  628,)  cited 
in  that  case,  that  here  was  an  agreement  executed  between  the 
parties,  by  which  the  arbitrators  were  authorized  and  directed 
to  make  an  oral  award.  Besides,  the  agreement  for  a  parol 
award,  as  before  remarked,  operated  as  a  new  submission.  (9 
John.  37,  and  other  cases  above  cited.)  But  on  the  ground  of 
estoppel,  alone,  I  am  satisfied  that  the  plaintiff  is  concluded  from 
saying  that  the  award  is  void.  He  ought  not.  and  cannot,  be 
permitted  to  deny  his  own  acts.     He  induced  the  defendant  to 

Vol.  XX.  62 


490  CASES  TN  THE  SUPREME  COURT. 


FreucU  v.  New. 


3onsent,  with  himself,  to  direct  the  arbitrators  to  make  a  parol 
award.  They  particularly  stated  that  they  would  make  it  in 
writing,  as  required  by  the  bond.  The  plaintiff  affirmed  in  the 
most  explicit  terms,  that  they  (the  parties)  had  drawn  up  and 
executed  an  agreement  between  themselves,  by  which  all  mat- 
ters were  regulated  except  the  sum  which  the  arbitrators  were 
to  award,  and  that  all  they  wanted  was  an  award  by  parol.  And 
when  the  award  is  thus  pronounced  pursuant  to  his  own  direc- 
tions, and  the  defendant  seeks  to  abide  by  it,  and  in  part  performs 
it  by  a  prompt  payment  of  the  fees  of  the  arbitrators,  the  plaintiff, 
finding  it  not  conformable  to  his  views  or  wishes,  seeks  the  aid 
of  the  court  to  permit  him  to  take  advantage  of  his  own  wrong, 
although  such  a  proceeding  is  contrary  to  upright  dealing  and 
good  morals.  Such  a  proceeding,  in  my  judgment,  would  be 
rank  injustice,  and  decidedly  in  conflict  with  all  the  cases  on 
this  sul)ject.  The  principle  laid  down  in  Fleming  v.  Gilbert. 
before  cited,  "  that  he  who  prevents  a  thing  being  done,  shall 
not  avail  himself  of  the  non-performance  he  has  occasioned,^' 
cannot  be  made  more  applicable  than  to  the  present  case.  {And 
see  8  Ves.  480  ;  3  Hill,  215 ;  2  Seld.  44,  279 ;  12  Barb.  370  ; 
77  CoTn.  Law  Rep.  83.)  It  would  in  fact  be  allowing  the  phiin- 
tiff  to  perpetrate  a  fraud  upon  the  arbitrators  and  upon  the 
party. 

The  last  objection  which  I  shall  notice  is  that  the  award  Avas 
Toid  as  to  the  rent  not  due,  and  as  to  damages  subsequently  to 
accrue.  It  is  said  in  support  ol  this  position,  that  a  covenant 
cannot  be  discharged  before  breach  but  by  an  instrument  under 
seal.  And  numerous  authorities  are  cited  by  the  plaintiff's 
counsel  in  support  of  this  principle,  and  which  cannot  be  dis- 
puted. The  question  is,  Avhether  they  are  applicable  to  the  case 
which  we  are  now  considering.  It  must  be  borne  in  mind  that 
the  submission  was  in  writing,  under  seal,  "to  hear  the  evidence, 
in  reference  to  a  certain  lease  given  on  or  about  the  16th  day 
of  March  1849,  by  Luther  French  to  Philip  E.  New.  To  the 
end  that  all  matters  in  controversy  in  that  behalf  between  the 
said  parties  should  be  finally  concluded,"  <fcc.  The  subsequent 
agreements  E  and  F,  also  recite  that  the  parties  have  '  this 


ST.  LAWRENCE— SEPTEMBER,  1855.  49  1 

French  v.  New. 

:lay"  [the  day  of  the  date  of  the  submission  bonds]  agreed  to 
^^ submit  their  matters  in  controversy'''  to  arbitration.  It  is  to 
be  remarked,  too,  that  the  award  was  to  be  made  on  or  before 
the  10th  of  April,  1852,  ten  days  after  the  expiration  of  the 
lease.  Now  what  was  the  evident  intention  of  the  parties,  by 
this  broad  and  comprehensive  clause  ?  Clearly  that  the  arbi- 
trators should  pass  upon?  all  matters  in  reference  to  the  lease ; 
whether  all  the  rent  had  become  due  or  not ;  so  as  to  end  all 
controversy  between  them  which  had  arisen,  or  might  arise,  out 
of  that  instrument.  They  intended,  no  doubt,  to  put  an  end  to 
the  lease,  and  to  have  a  final  settlement  in  relation  to  it.  They 
evidently  so  understood  the  submission,  as  they  went  into  all 
matters,  before  the  arbitrators,  as  well  relating  to  the  rent  due, 
as  that  which  was  to  become  due.  They  also  litigated  respect- 
ing the  fire  wood,  oats,  clover  seed,  and  the  eight  acres  of  rye 
which  must  have  been  sowti  previously  and  was  then  on  the 
ground.  They  finished  the  hearing  on  the  31st  of  March,  only 
the  day  before  the  last  rent  would  become  due,  and  submitted 
all  their  matters  to  the  arbitrators  on  that  day.  It  is  not  for  a 
moment  to  be  supposed  that  they  did  not  intend  to,  and  did  not 
in  fact  include  the  whole  subject  matter  in  relation  to  the  lease, 
at  that  time.  It  is  said  it  was  proved  by  parol  that  the  rent  to 
become  due,  and  other  claims,  were  taken  into  consideration. 
This  was  proper,  to  show  whether  the  arbitrators  took  into  con- 
sideration matters  beyond  the  submission,  or  not.  And  it  showed 
what  the  intention  of  the  parties  was  in  the  written  submission. 
(7  Hill,  329.  1  Barb.  325.  4  Denio,  194!  And  see  Kyd  on 
Aivaj'ds,  52,  53.) 

But  it  is  insisted  that  the  parol  'award  would  not  discharge 
the  lease.  This  depends,  again,  upon  the  effect  of  the  waiver, 
and  upon  the  principle  of  estoppel,  before  discussed.  If  the 
submission  included  it,  in  all  its  terms,  then  if  the  award  Avas 
good  the  lease  was  canceled  and  the  plaintiff  was  driven  to  his 
remedy  under  the  award.  In  Delacroix  v.  Bul/dey,  (13  JVetid. 
71,  75,)  one  of  the  cases  relied  upon  by  the  plaintiff's  counsel, 
Savage,  Ch.  J.,  in  delivering  the  opinion  of  the  court,  remarks 
that  the  case  of  Fleming  v.  Gilbert  proceeded  upon  the  princi- 


492  .  CASES  m  THE  SUPREME  COURT. 

French  v.  New. 

pie  that  the  ^hxintiW  prevented  the  defendant  from  performing 
his  contract,  and  therefore  should  not  take  advantage  of  his  fail- 
ure ;  but  that  in  the  case  he  was  then  considering  nothing  wa? 
done  or  said  ly  the  plaintiff  to  prevent  the  defendant  from  a  lit 
eral  compliance  with  his  contract.  He  adds,  "  It  will  be  seen 
that  there  has  been  no  innovation  upon  established  principles, 
and  that  the  law  remains,  as  it  has  always  existed,  that  a  sealed 
executory  contract  cannot  be  released  or  rescinded  by  a  parol 
executory  contract ;  but  that  after  breach  of  a  sealed  contract  a 
right  of  action  may  be  waived  or  released  by  a  new  parol  con- 
tract in  relation  to  the  same  subject  matter,  or  by  any  valid  pa- 
rol executed  contract."  Here  was  an  executed  contract  under 
seal,  submitting  all  matters  in  relation  to  the  lease,  and  a  sub- 
sequently executed  parol  contract  that  the  arbitrators  might 
award  as  they  did,  before  any  attempt  at  revocation  by  parol. 
Eddij  v.  Graves^  (23  Wend.  82,)  and  Siiydani  v.  Jones,  (10  id. 
180,)  do  not,  as  I  understand  them,  conflict  with  this  principle. 

Again,  it  is  further  argued  that  if  the  award  could  operate  to 
extinguiah  the  rent  already  due,  it  could  not  aifcct  that  subse- 
quently to  become  due,  and  being  void  as  to  that,  must  l)e  void 
in  to  to.  It  was  not  competent  for  the  arbitrators  to  award  upon 
claims  not  submitted  to  them.  But  it  has  been  already  shown 
that  all  matters  in  relation  to  the  lease,  as  Avell  the  rent  to  be- 
come due  as  that  already  accrued,  were  included  in  the  sul)mis- 
sion.  The  submission  may  be  extended  so  as  to  include  claims 
not  yet  due  from  the  one  to  the  other  by  previous  contract,  so 
as  to  carry  out  fully  the  intention  of  parties  to  settle  all  matters 
between  them,  as  well  those  existing  at  the  time  as  those  which 
may  arise  afterwards.     {Kyd,  142  to  149.) 

The  evident  and  clear  intention  of  the  party,  as  before  re- 
marked, was  to  extinguish  the  lease  entirely.  So  the  arbitrators 
understood,  and  awarded  accordingly.  And  every  reasonable 
intendment  is  to  be  made,  to  uphold  their  award.  (19  Wend. 
290.  1  ^^eld.  482.)  The  verbal  award  and  the  instruments  E 
and  F,  may  be  construed  together  for  the  purpose  of  upholding  it. 

The  evidence  offered  by  the  plaintiff  was  properly  rejected. 
The  offer  did  not  go  far  enough.     It  did  not  go  to  show  such 


ST.  LAWRENCE— SEPTEMBER,  1855.  493 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

3orruption,  partiality  or  gross  misbehavior  as  would  invalidate 
the  award  at  law.  (1  John.  Ch.  Rep.  191,  276.  2  id.  551,  and 
various  other  cases.)  Besides,  in  this  case,  the  offer  was  to 
show,  by  one  of  the  arbitrators,  that  he  had  previously  conversed 
with  the  defendant  and  told  him  his  rent  was  too  hish,  &c. 
This,  if  any  thing,  was  an  attempt  to  impeach  the  award  of  the 
arbitrators  by  one  of  themselves.  This  cannot  be  done.'  ( Van 
Cortlandt  v.  Underhill.  17  Johii.  405.  Butler  v.  Mayor  d^c. 
of  New  York,  1  Barb.  S.  C.  Rep.  325.) 

The  motion  to  set  aside  the  nonsuit  and  for  a  new  trial,  must 
be  denied  with  costs. 

[St.  Lawrence  General  Term,  September  3,  1855.     Hand,  C.  L.  Allen  and 
James,  Justices.] 


Hunter  and  others  vs.  The  Hudson  River  Iron  and  Ma 
CHINE  Company. 

In  an  action  commenced  under  sections  206,  &c.  of  tlie  code,  for  the  claina  and 
delivery  of  personal  property,  where  the  complaint  is  in  the  form  of  tlie  old 
declaration  in  replevin  in  the  detinet,  and  charges  that  the  defendants  have 
become  possessed  of,  and  wrongfnlly  detain  the  goods  and  chattels,  and  the 
plaintiffs  proceed  upon  the  ground  that  the  title  to  the  goods  was  never  changed, 
but  remained  in  them,  because  the  same  were  purchased  of  the  plaintiffs,  and 
the  delivery  thereof  procured,  through  the  false  representations  of  the  vendees 
as  to  their  solvency  and  credit,  proof  of  the  purchase  of  the  goods  by  the  agent 
of  the  defendants,  by  their  direction,  and  that  at  that  time  the  defendants  were 
insolvent,  is  competent  evidence,  on  the  question  of  fraujd. 

In  such  an  action  it  is  not  necessary  the  complaint  should  aver  a  demand  of  the 
goods ;  or  that  it  should  contain  an  allegation  of  the  insolvency  of  the  defend- 
ants, or  of  any  of  the  facts  going  to  establish  the  fraud. 

It  is  sufBcient  if  it  is  in  the  form  of  the  old  declaration  in  replevin  in  the  detinet, 
and  charges  that  the  defendants  have  become  possessed  of,  and  wrongfully 
detain,  the  goods  and  chattels  in  question. 

Where  a  complaint  and  answer  are  both  very  general  in  point  of  form,  but  neither 
party  demurs,  and  both  have  gone  to  trial  with  a  full  understanding  of  their 
rights,  and  neither  party  has  been  taken  by  surprise  by  the  pleading  of  his 
adversary,  and  a  full  and  fair  investigation  has  been  had,  upon  the  merits^ 


40  4         CASES  IX  THE  SUPREME  COURT. 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

y.uch  an  amendment  will  be  allowed  as  may  be  neoessary  to  confo  m  the  com 
)(laint  to  the  fiicts  proved,  and  as  will  do  substantial  Justice  to  both  parties. 

A.  sale  and  delivery  of  goods,  procured  through  the  false  representations  of  the 
vendee  in  regard  to  his  solvency  and  credit,  passes  no  title  whatever  to  ihe 
property,  as  between  the  parties ;  and  the  vendor  may  maintain  an  action,  un- 
der the  code,  for  the  claim  and  delivery  thereof 

h\  such  an  action,  where  it  appears  that  the  purchase  was  made  by  an  agent,  it 
is  material  for  the  plaintiff"  to  show  not  only  that  the  purchaser  was  insolvent, 
at  the  time  of  the  purchase,  but  that  such  purchaser,  or  his  agent,  or  both, 
knew  of  such  insolvencj'.  Hence  the  declarations  of  the  agent,  to  third  per- 
sons, made  by  him  while  acting  for  his  principal  and  within  the  scope  of  his 
authority,  and  going  to  show  such  knowledge  on  the  part  of  both  principal 
and  agent,  are  proper  evidence. 

\\"here  a  mortgage  purports  to  have  been  executed  by  a  corporation,  throug;h  its 
treasurer,  a  certificate  of  acknowledgment  stating  that  the  treasurer  testified, 
before  the  officer,  that  he  was  the  treasurer  of  the  corporation  ;  that  it  was  a 
corporation,  but  had  no  corporate  seal ;  that  he  signed  his  name  to  the  mort- 
gage and  affixed  his  own  seal  thereto,  by  the  order  and  resolution  of  the  trus- 
tees of  said  corporation  duly  made  and  given  in  writing  ;  and  that  the  same 
was  executed  by  him  as  such  treasurer,  for  the  purposes  therein  mentioned,  is 
prima  facie  sufficient  evidence  of  the  due  execution  of  the  mortgage,  without 
producing  and  proving  the  resolution  of  the  trustees ;  where  the  instrument  is 
offered  for  the  purpose  of  proving  an  act  or  acknowledgment  of  their  pecuniary 
condition,  by  the  mortgagors. 

A  principal  is  liable  for  the  fraud  or  misconduct  of  his  agent :  and  he  not  only 
cannot  take  any  benefit  from  a  misrepresentation,  fraudulently  made  by  tho 
agent,  but  is  bound  to  make  compensation  for  injuries  sustained  by  others, 
thereby.  And  this,  although  the  principal  may  be  innocent ;  provided  the 
agent  acted  within  the  scope  of  his  authority. 

There  need  not  be  express  authority  to  make  a  particular  representation,  but  tho 
authority  may  be  implied,  as  incident  to  a  general  authority. 

A  gcneirl  authority  to  an  agent  to  purchase  goods  on  credit,  is  an  authority  to 
make  tlie  necessary  representations  as  to  the  credit  and  solvency'  of  his  principal 

Sucli  authority  is  necessarily  incident  to  the  power  to  purchase  on  credit. 

And  declarations  made  by  the  agent,  while  applying  for  goods  on  credit,  as  to 
the  credit  and  solvency  of  his  principal,  are  part  of  the  res  gestce,  and  are 
equally  obligatory  upon  the  principal  as  if  made  by  himself 

In  such  a  case,  even  if  the  principal  does  not  know,  at  the  time,  that  the  repre- 
sentatinns  of  his  agent  are  false,  he  is  liable  to  the  vendor,  upon  the  principle 
that  of  two  innocent  parties  the  one  shall  suffer  who,  by  his  agent  causes  the 
injury. 

I'^TIIS  action  was  commenced  under  section  206  of  the  code, 
for  the  claim  and  delivery  of  personal  property.     The  com- 
plaint averred  that  the  defendants  were  a  manufacturing  com 


ST.  LAWRENCE- SEPTEMBER,  1855.  495 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

pany,  formed  underthe  act  of  March  22, 1811.  That  the  company 
became  possessed  of,  and  wrongfully  detained  from  the  plaintiifs, 
the  "roods  and  chattels  described  in  the  schedule  annexed  to  it, 
to  the  value  of  $1500,  and  demanded  judgment  for  that  amount. 
The  answer  denied  the  allegations  in  the  complaint,  and  averred 
that  the  goods  were  wrongfully  taken  from  the  possession  of  the 
defendants  by  the  plaintiffs  or  their  order,  and  delivered  to  the 
plaintiff's  on  the  3d  of  June,  1854,  and  prayed  for  a  return,  with 
costs.  The  action  was  tried  at  the  Washington  circuit,  in  Octo- 
ber, 1854,  by  a  jury. 

The  plaintiff's,  after  proving  the  incorporation  of  the  company, 
introduced  as  a  witness  Charles  Amerman,  who  proved  the 
partnership  of  the  plaintiff's,  which  had  existed  since  January, 
1852.  It  was  here  admitted  by  the  defendants'  counsel  that  the 
property  and  goods  described  in  the  complaint  were  purchased 
of  the  plaintiff's  by  Simeon  Mears,  as  the  treasurer  of  the  de- 
fendants, and  by  the  direction  and  under  the  authority  of  the 
defendants,  on  the  18th  of  April,  1854 ;  that  the  value  thereof 
was  $1118.03 ;  and  that  at  that  time  the  company  was  insolvent 
for  many  thousand  dollars.  The  defendants'  counsel  objected  to 
the  evidence  thus  admitted,  on  the  ground  that  under  the  plead- 
ings the  evidence  was  not  admissible,  as  there  was  no  allegation 
of  the  facts,  in  the  complaint.  The  objection  was  overruled,  and 
the  defendants'  counsel  excepted.  The  witness  then  further 
testified,  among  other  things,  as  follows  :  "  I  was  present  at  the 
time  of  the  sale.  I  was  acting  as  book-keeper.  Mears  came  to 
the  office  of  the  plaintiff's,  and  after  some  general  conversation 
with  Mr.  Hunter,  one  of  the  firm,  he  spoke  about  settling  his 
account  and  purchasing  more  goods.  In  the  meantime  I  had 
drawn  out  an  outline  or  statement  of  his  account.  While  thus 
occupied,  Mr.  Buckley  (another  member  of  the  firm)  came  in  and 
asked  Mears  how  he  was  getting  along.  Mears  answered  that  he 
was  doing  a  good  business,  and  had  been.  Mears  wished  to  settle 
the  outstanding  account  and  give  extended  notes.  He  was  act- 
ing as  the  agent  of  the  company,  all  this  time,  and  it  is  the 
account  of  the  defendants  of  which  I  have  been  speaking.  Buck- 
ley said  iron  was  fetching  such  good  prices  the  last  year  that  he 


496  CASES  IN  THE  SUPREME  COURT, 

Hunter  v.  Hudson  River  Iron  and  Machine  Co 

ought  not  to  ask  an  extension.  Hears  replied  that  they,  were 
doing  very  ivell ;  had  been  doing  well ;  and  spoke  of  another 
branch  of  the  iron  business — a  rolling  machine — that  he  was 
about  to  engage  in,  and  wished  Buckley  to  take  an  interest  in  it. 
Buckley  declined."  After  some  further  conversation,  the  wit- 
ness testified,  it  was  finally  agreed  that  three  notes  should  be 
given  by  the  defendant,  one  of  $406  and  over,  which  was  pay 
a1)le  in  May  following,  and  two  others,  for  $280  each,  at  five 
and  six  months.  Mears  signed  these  notes  as  treasurer.  Buck- 
ley then  called  Cowles,  his  salesman,  and  told  him  to  sell  Mears 
all  the  goods  he  wanted.  The  same  day  Mears,  as  agent,  pur- 
chased goods  of  the  plaintiffs,  on  credit,  to  the  amount  of  up- 
wards of  $1300.  On  his  cross-examination  the  witness  testified 
that  when  Buckley  first  entered  the  store,  that  morning,  the  first 
salutation  from  him  was  "Hallo,  Mears  !  How  are  you  getting 
along?"  He  said,  "We  are,  and  have  been,  doing  a  good  business," 
or  "  we  are  doing  a  good  business,  and  have  been  doing  a  good  busi- 
ness." Buckley  told  him  he  supposed  he  had  come  down  to 
purchase  goods,  and  he  said  he  had.  Buckley  said,  "  I  suppose 
you  are  yet  doing  well."    Mears  replied  "  Yes,"  or  "  certainly." 

Mr.  Cowles,  the  salesman  of  the  plaintiffs,  testified  that  after 
receiving  directions  from  Buckley,  as  testified  to  by  Amerman, 
he  sold  Mears,  as  agent  for  the  defendants,  on  the  18th  of  April, 
1854,  goods  to  the  value  of  about  $1400,  and  that  he  afterwards 
identified  a  portion  of  the  goods,  to  the  amount  of  $1118.03,  on 
the  bank  of  the  canal,  which  were  delivered  to  the  sheriff,  for 
the  plaintifls,   and  which  were  afterwards  sold  by  the  plaintiffs. 

William,  H.  Dyke,  another  witness  sworn  on  the  part  of  the 
plaintiffs,  testified  that  he  AA'as  connected  with  the  firm  of  Ham- 
mond and  others,  at  Crown  Point,  called  the  Crown  Point  Iron 
Company.  This  testimony  was  objected  to  as  immaterial,  but 
the  objection  was  overruled,  and  the  defendants'  counsel  excepted. 
The  witness  further  testified  that  his  company  had  large  deal- 
ings with  the  defendants,  and  that  there  was  a  balance  due 
them  from  the  defendants,  on  the  18th  of  April,  1854,  of  from 
$10,000  to  $20,000,  which  was  not  paid  when  it  fell  due.  In 
relation  to  that  indebtedness,  the  witness  said  he  had  a  conver- 


ST.  LAWRENCE- SEPTEMBER,  1855.  497 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

sation  with  Mears,  the  first  week  in  April  of  that  year,  and  was 
asked  what  the  conversation  was.  The  question  was  objected 
to  by  the  defendants'  counsel,  but  the  objection  was  overruled, 
and  the  defendants'  counsel  excepted.  The  witness  testified 
that  Mears  expressed  the  inability  of  the  company  to  pay  this 
debt,  amounting  at  that  time  to  between  eleven  and  twelve  thou- 
sand dollars,  and  more  coming  due  in  a  day  or  two,  and  wished 
for  an  extension  of  time.  The  witness  made  the  remark  that 
there  was  between  four  and  five  thousand  dollars  under  protest. 
Mears  said  it  was  impossible  to  pay,  and  remarked  that  if  he 
could  not  get  an  extension  from  creditors  he  would  have  to  stop 
business,  and  give  up  the  property  for  the  beiiefit  of  creditors. 
He,  Mears,  engaged  to  come  to  Crown  Point  the  next  week  and 
make  an  exhibit  of  the  affairs  of  the  company  to  Hammond. 
He  did  not  come,  at  the  time  appointed,  but  did  come  the  fore- 
part of  May  following,  and  made  a  statement  to  Hammond,  by 
which  he  said  that*  the  indebtedness  of  the  company  was  from 
seventy  to  seventy-eight  thousand  dollars,  and  that  the  amount 
of  the  assets  was  from  thirty  to  forty  thousand  dollars. 

Russell  W.  Pratt  testified  for  the  plaintiffs  that  he  was  a  trus; 
tee  of  the  company  in  April,  1854,  and  was  present  after  the  middle 
of  May  of  that  year,  when  Mears  made  a  statement  orally,  by 
items,  of  the  indebtedness  of  the  company.  He  stated  the 
amount  of  the  indebtedness  to  be  about  $80,000,  and  the  assets 
at  $20,000  or  $21,000.  This  was  a  day  or  two  before  it  was 
publicly  known  that  the  company  had  failed.  It  was  not  known 
to  the  witness  that  the  company  Avas  insolvent,  before  this  state- 
ment was  made.  The  defendants'  counsel  offered  to  prove  by 
this  Avitness,  that  at  the  time  of  the  conversation  and  interview 
testified  to  by  him,  none  of  the  board  of  trustees  present  knew 
of  the  insolvency  of  the  company,  and  that  they  all,  severally 
except  Mears,  then  expressed  their  surprise  at  the  condition  of 
the  company,  as  then  disclosed  by  Mears.  The  plaintiffs'  coun- 
sel excepted  to  that  part  of  the  offer  which  went  to  prove  the 
declarations  of  the  company,  as  immaterial  and  improper.  These 
were  excluded,  and  the  defendants'  counsel  excepted.  No  state- 
ment of  the  affairs  of  the  company  had  been  made  for  three  years 

Vol.  XX.  63 


498  CASES  IN  THE  SUPREME  COURT. 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

previous  to  that  time,  although  the  witness  had  acted  as  secre- 
tary of  the  board  for  a  portion  of  that  time. 

The  phiintiffs  offered  in  evidence  an  exemplified  copy  of  a 
mortgage  from  the  defendant  to  Jonathan  S.  Beach  and  Simeon 
Mears,  dated  Jan.  30, 1854,  acknowledged  June  5th,  1854.  The 
mortgage  was  executed  as  follows ; 

"  By  order  of  the  board  of  trustees,  as  per  resolution  of  board, 
Fort  Edward,  Jan.  28,  1854. 

For  the  Hudson  River  Iron  and  Machine  Co. 

S.  Mears,  Treasurer."     [l.  s.] 

The  certificate  of  acknowledgment  was  as  follows : 

"  State  of  New  York,  county  of  Washington,  ss.  On  this  5th 
day  of  June,  1854,  before  me  personally  came  Simeon  Mears, 
treasurer  of  the  Hudson  River  Iron  and  Machine  Company,  to 
me  known,  who  being  by  me  duly  sworn,  did  depose  and  say 
that  he  resides  in  the  village  of  Fort  Edward,  in  said  county, 
that  he  is  the  treasurer  of  the  Hudson  River  Iron  and  Machine 
Company,  that  the  said  company  is  a  corporation,  but  has  no 
particular  corporative  seal,  that  he  signed  his  name  to  the  with- 
in, and  affixed  the  seal  thereto  by  the  order  and  resolution  of 
the  trustees  of  the  said  corporation,  duly  made  and  given  in 
writing,  and  that  the  same  was  executed  by  hiiti  as  such  treas- 
urer, for  the  purposes  therein  mentioned. 

Edvtin  Crane,  Justice  of  the  Peace." 

The  defendants'  counsel  objected  to  the  introduction  of  this 
mortgage  in  evidence,  unless  the  authority  of  Mears  to  execute 
it,  from  the  company,  was  shown.  They  insisted  that  it  was 
immaterial ;  and  that  the  proof  of  authority,  contained  in  the 
certificate,  was  not  evidence,  and  that  the  paper  was  a  nullity. 
The  objections  were  overruled,  and  the  defendants'  counsel  ex- 
cepted. The  mortgage  was  then  read  in  evidence.  It  covered 
all  the  property,  real  and  personal,  of  the  defendants,  and  was  a 
mortgage  of  indemnity  to  Mears  and  Beach  for  $2500,  to  secure 
them  for  having  indorsed  the  paper  of  the  defendants  to  that 
amount. 

The  plaintiffs  here  rested,  and  the  defendants'  counsel  moved 
for  a  nonsuit  on  the  following  grounds:  1.  That  there  was  nv 


ST.  L A WREIsXE- SEPTEMBER,  1855.  499 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

evidence  to  sustain  the  complaint.  2.  That  the  declarations  of 
Mears  were  made  without  authority,  and  if  authorized,  a  fair 
construction  would  not  enable  the  plaintiffs  to  maintain  the  suit. 
3.  That  there  was  no  proof  that  the  Hudson  River  Iron  and 
Machine  Company  knew  they  were  false.  4.  That' there  was  a 
total  absence  of  proof  to  show  that  the  defendants  were  insol- 
vent, at  the  time  the  representations  Avere  made.  5.  That  if 
they  were  insolvent,  it  did  not  make  a  case  for  relief  in  the  pres 
ent  form.  The  judge  denied  the  motion,  and  the  defendants' 
counsel  excepted. 

Simeon  Mears  was  then  called  as  a  witness  by  the  defend- 
ants, and  was  objected  to  by  the  plaintiffs'  counsel  as  interested. 
He  was  admitted  by  the  court,  and  the  defendants'  counsel  ex- 
cepted. He  testified  that  he  was  the  Mears  referred  to  by  the 
witnesses  ;  that  he  had  no  knowledge  of  the  insolvency  of  the 
defendants,  at  the  time  of  the  purchase  of  the  goods  in  question, 
but  supposed  they  were  doing  a  good  business,  at  that  time. 
He  further  testified,  on  cross-examination,  that  he  was  the  treas- 
urer of  the  company,  and  had  the  general  charge  of  its  affain 
as  to  a  particular  department ;  that  he  did  more  of  the  business 
than  any  other  individual.  The  notes  of  the  company  were  giver 
by  him  as  treasurer.  He  had  the  general  charge  of  makinf 
sales.  The  books  Avere  kept  at  the  store  by  clerks,  and  were  ii 
his  charge  as  treasurer.  He  frequently  made  entries  on  then 
and  had  daily  access  to  them.  He  got  the  information  from  the 
books,  which  enabled  him  to  make  the  statement  testified  to  by 
Pratt.  The  goods  in  question  formed  part  of  the  assets  in  that 
statement.  That  the  company  was  indebted  to  him  individually 
to  between  $12,000  and  $20,000,  though  not  in  all  that  amount 
when  the  goods  were  purchased,  and  were  otherwise  largely  in- 
debted at  that  time,  and  had  had  several  notes  protested  for  a 
large  amount,  before  the  18th  of  April,  and  had  been  in  the 
habit  of  having  their  notes  protested  for  the  last  eight  years. 
They  Avere  also  largely  indebted  to  their  hands  ;  to  one  of  whom, 
at  least,  they  had  been  thus  indebted  for  more  than  one  year. 
Several  suits  had  also  been  conimenced  against  the  company 
before  the  18th  of  April.     The   extent  of  the  business  of  thi 


500  CASES  IN  THE  SUPREME  COURT. 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

company  was  about  $100,000,  aiid  no  examination  or  ir.yentory 
of  the  state  of  its  affairs  for  two  years  previous  to  the  time  of 
the  making  of  the  statement  testified  to  by  Pratt.  The  witness 
purchased,  and  received  money,  and  paid  debts,  and  did  a  large 
share  of  the  other  business.  The  trustees  had  or  took  no  active 
oversight  of  it. 

The  proof  being  closed,  the  cause  was  summed  up  and  sub- 
mitted to  the  jury,  under  the  charge  of  the  court.  They  found 
a  verdict  for  the  plaintiffs  for  $232  damages,  and  assessed  the 
value  of  the  property  taken  at  $1118.03. 

A  case  was  made,  and  judgment  was  suspended  by  the  court, 
who  ordered  the  case  to  be  heard  in  the  first  instance  at  a  gen- 
eral term.     A  motion  was  now  made  for  a  new  trial. 

Hughes  i^"  Northrvp  and  J.  Gibson^  for  the  plaintiffs. 

A.  D.   Wait  and  E.  H.  Rosekrans,  for  the  defendants. 

Bt/  the  Court,  C.  L.  Allen,  J.  Several  objections  were 
taken  by  the  defendants'  counsel  on  the  trial  of  this  action,  and 
have  been  urged  on  the  argument  here,  which  it  will  be  proper 
first  to  notice  and  dispose  of  in  their  order. 

1.  It  is  objected  that  the  evidence  of  the  purchase  of  the 
goods  in  question  by  Mears  as  the  treasurer  of  the  defendants, 
and  by  the  direction  and  under  the  authority  of  the  defendants, 
on  the  18th  of  April,  1854,  and  that  at  that  time  the  company 
was  insolvent,  was  improperly  received  under  the  pleadings. 
The  action  was  commenced  under  section  206  of  the  code,  for 
the  claim  and  delivery  of  personal  property.  The  complaint  is 
in  the  form  of  the  old  declaration  in  replevin  in  the  detinet,  and 
charges  that  the  defendants  have  become  possessed  of  and 
wrongfully  detain  the  goods  and  chattels  in  question.  The 
plaintiffs  proceed  upon  the  ground  that  the  title  to  the  goods 
was  never  changed,  but  remained  in  them,  up  to  the  time  of 
the  commencement  of  the  action.  They  claim  to  succeed,  and 
must  succeed,  if  at  all,  on  this  ground  alone.  Hence  they  en- 
deavored to  prove  that  the  alleged  purchase  was  made  by  Mears 


ST.  LAWRENCE— SEPTEMBER,  1855.  501 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

b}'  the  direction  of  the  defendants  while  the  company  was  largely 
insolvent.  This  Avas  competent  evidence,  on  the  question  of 
fraud.  It  is  urged  that  the  complaint  is  insufficient,  in  not  aver- 
ring a  demand  of  the  goods,  and  in  containing  no  allegation  of 
the  insolvency  of  the  defendants,  or  of  any  of  the  facts  offered 
to  be  proved.  This  was  not  necessary.  If  the  purchase  was  a 
fraudulent  one,  the  plaintiffs  still  retained  their  legal  right  in 
the  go(Kls,  unless,  after  discovering  the  act  of  fraud,  they  assent- 
ed to  the  sale,  either  positively  or  by  such  delay  in  reclaiming 
them  as  would  authorize  the  inference  of  an  assent.  The  old 
cases  fully  establish  the  position  that  a  sale  and  delivery  of 
goods,  procured  through  the  false  representations  of  the  vendee 
in  regard  to  his  solvency  and  credit,  passed  no  title  whatever  to 
the  property,  as  between  the  parties,  and  the  vendor  might 
maintain  either  trover  or  trespass  or  replevin  in  the  cepit  or 
detinet,  to  recover  their  value,  even  though  the  actual  possession 
was  in  another.  In  such  cases  the  declaration  was  sufficient  if 
in  the  usual  form,  in  those  actions.  {Ash  v.  Putnam,  1  Hill, 
302,  Cary  v,  Hotailbig,  Id.  311,  Olmsted  v,  Hotailing, 
Id.  317.  Matteawan  Co.  v.  Bentley  and  others,  13  Barb.  641. 
Root  V.  French,  13  Wend.  570.)  The  latter  case  was  relied 
upon  by  the  defendants'  counsel  to  show  the  necessity  of  aver- 
ring a  demand,  in  the  complaint.  But  it  is  believed  that  it 
establishes  no  such  position.  It  decides  with  the  plaintiffs  that 
a  fraudulent  purchase  of  goods  gives  no  title  to  the  fraudulent 
purchaser,  and  that  the  vendor  in  such  case  may  maintain  re- 
plevin for  the  goods.  It  then  goes  further  and  affirms  the  prin- 
ciple that  a  bona  fide  purchaser  from  the  vendee  of  goods 
obtained  by  fraud,  without  notice,  will  under  certain  circum- 
stances, be  protected.  And,  to  maintain  an  action  against  him,  a 
demand,  in  some  cases,  must  be  made  before  suit  brought.  But 
no  such  demand  is  necessary  as  against  the  fraudulent  vendee. 
An  action,  in  the  nature  of  trespass,  or  for  the  wrongful  deten- 
tion of  the  property  under  sec,  206  of  the  code,  may  be  main- 
tained immediately ;  that  section  having  been  undoubtedly  in- 
tended as  a  substitute  for  the  old  action  of  replevin.     (6  How 


502        OASES  m  THE  SUPREME  COURT. 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

339.)     Besides,  in  this  case,  no  objection  was  taken,  on  the  trial, 
of  want  of  proof  of  demand. 

The  cases  are  somewhat  conflicting  as  to  Avhat  is  necessary  to 
be  averred  in  the  complaint  in  an  action  like  the  present,  under 
the  code.  But  I  think  the  weight  of  authority  is  with  the 
plaintiff,  as  to  the  form  which  he  has  adopted  in  this  case.  A 
direct  and  issuable  averment  that  the  goods  claimed  were  the 
property  of  the  plaintiffs  ;  nothing  being  necessary  on  their  part 
to  be  returned,  in  order  to  restore  the  defendants  to  the  condition 
in  which  they  were  at  the  time  of  the  sale,  has  been  held  to 
be  sufficient.  ( Vandenhurgh  v.  Van  Valkerihurgh,  8  Barb. 
217.  13  id.  641.)  It  has  been  too  often  decided  that  facts, 
and  not  the  evidence  of  facts,  should  be  pleaded.  The  testimo- 
ny in  this  case  went  to  show  that  the  goods  were  fraudulently 
obtained,  and  that  therefore  the  title  to  the  property  was  not 
changed,  and  I  think  was  properly  received.  The  defendants 
might  have  required  the  complaint  to  be  made  more  definite 
and  certain,  under  sec.  160  of  the  code.  And  even  if  it  should 
be  held  to  have  been  necessary  to  set  out  the  facts  more  full}',  I 
am  disposed,  after  trial,  and  when  the  party  has  had  the  full 
benefit  of  any  defense  which  he  chose  to  make,  to  grant  the 
plaintiffs  leave  to  amend,  so  as  to  conform  their  complaint  to  the 
facts  proved.  That  portion  of  the  answer  which  avers  that  the 
goods  in  question  were  the  property  of  the  defendants  is  as 
general  as  the  complaint.  Neither  party  demurred,  and  both 
have  gone  to  trial  Avith  a  full  understanding  of  their  rights. 
Neither  has  been  taken  by  surprise  by  the  pleading  of  his 
adversary.  A  full  and  fair  investigation  has  been  had,  upon 
the  merits,  and  such  an  amendment  should  be  allowed  as  will  do 
substantial  justice  to  both.     {Code,  §§169,  173.) 

2.  It  is  further  objected  that  the  testimony  of  the  witness 
Van  Dyke  was  improperly  received.  It  was  material  for  the 
plaintiffs  not  only  to  show  that  the  company  was  insolvent  at 
the  time  of  the  purchase,  but  that  the  defendants,  or  Mears  the 
agent,  or  both,  knew  of  such  insolvency.  (McCrackan  v.  Choi- 
well,  4  A^eld.  133.)  The  testimony  of  Van  Dyke  went  to  show 
this  knowledge,  on  the  part  of  both,  and  was  therefore  proper 


ST.  LAWRENCE— SEPTEMBER,  1855.  503 

Hunter  v.  Hudson  River  Iron  and  Machine  Co. 

ft  is  said  that  the  testimony  only  proved  the  declarations  of 
Mears  ;  that  such  declarations  were  not  within  the  scope  of  his 
authority,  even  if  an  agent,  and  were  therefore  hearsay  and  im- 
material. Even  if  this  were  so.  they  were  proper  to  show 
Knowledge  in  Mears,  who  afterwards  testified,  on  the  part  of  the 
defendants,  that  he  did  not  know,  at  the  time  of  the  purchase, 
that  the  company  was  insolvent,  and  that  he  made  the  declara- 
tions to  the  plaintiffs  which  were  proved,  in  good  faith.  But 
Mears  was  acting,  at  the  time  of  those  declarations,  within  the 
scope  of  his  authority.  He  was  transacting  business  with  the 
witness  as  one  of  the  firm  of  Hammond  6c  Co.  to  whom  the  com- 
pany was  largely  indebted,  as  their  agent.  He  was  endeavoring 
to  obtain  an  extension  of  time,  and  as  one  inducement  to  the 
witness  to  consent,  represented  to  him  that  unless  time  could  be 
obtained  the  company  must  stop  business  and  give  up  their 
property  for  the  benefit  of  their  creditors ;  that  their  indebted- 
ness was  from  75  to  $78,000,  and  their  assets  amounted  only  to 
about  30  or  $40,000.  This  conversation  occurred  the  first  week 
in  April,  a  week  or  fortnight  only  before  the  purchase  from  tbe 
plaintiffs.  The  testimony,  in  my  judgment,  was  clearly  admis- 
sible, and  the  authorities  hereafter  cited  abundantly  show  it. 

3.  It  is  insisted  that  the  proof  offered,  that  all  the  directors 
present  at  the  time  of  the  statement  made  by  Mears,  except  him, 
expressed  their  surprise  at  the  condition  of  the  company,  ought 
to  have  been  received.  The  court  permitted  the  defendants  to 
show  that  none  of  those  directors  knew  of  the  insblvency  of  the 
company,  at  that  time,  which  could  have  been  done  by  calling 
upon  them  to  testify,  as  Pratt,  one  of  them,  had  done.  But  the 
expression  of  their  surprise  was  a  matter  wholly  immaterial, 
and  was  properly  rejected.  It  was  a  matter  of  no  consequence, 
as  will  be  hereafter  shown,  whether  the  defendants  knew  of  their 
insolvency  or  not.  But  if  it  were,  their  expressing  a  surprise 
at  Mears'  statement  would  not  show  a  want  of  knowledge  on 
their  part. 

4.  The  next  objection  interposed  by  the  defendants  is  that 
the  mortgage  was  improperly  received  in  evidence.  The  certifi- 
cate of  the  justice  states  that  Mears  testified  that  he  was  the 


,504        CASES  IN  THE  SUPPwEME  COURT. 


Hunter  r.  Hudson  River  Iron  and  Machine  Co. 


treasurer  of  the  company  ;  that  it  Avas  a  corporation,  but  had  i.a 
corporate  seal ;  that  he  signed  his  name  to  the  mortgage  and 
affixed  the  seal  (his  seal)  thereto,  by  the  order  and  resolution 
of  the  trustees  of  said  corporation,  duly  made  and  given  in  writ- 
ing, and  that  the  same  was  executed  by  him  as  such  treasurer, 
for  the  purposes  therein  mentioned.  In  Johnson  v.  Bttsh,  (3 
Barb.  Ch.  Rep.  207,  233,)  where  the  same  objection  was  taken, 
as  here,  that  the  resolution  of  the  board  of  directors  ought  to 
have  been  produced  and  proved,  the  chancellor  decided  that  for- 
merly the  execution  of  the  instrument  under  the  corporate  seal, 
if  there  was  one,  (and  under  the  seal  of  the  treasurer  if  there 
was  no  corporate  seal.)  was  prima  facie  evidence  of  authority  to 
execute  the  deed,  which  might  be  overcome  by  showing,  either 
directly  or  circumstantially,  that  there  was  no  authority,  either 
general  or  specific,  and  that  now  it  may  be  overcome  by  showing 
that  there  was  no  resolution  of  the  board.  The  certificate  in 
this  case  recites  all  that  is  necessary-,  in  the  first  instance,  and 
it  would  have  been  a  very  easy  matter  for  the  defendants  to 
show  that  no  such  resolution  had  ever  been  passed,  and  that 
Mears  swore  falsely  in  so  testifying.  The  mortgage  was  dated 
in  January,  1854,  but  was  not  acknowledged  until  June  of  that 
year.  Nevertheless,  Mears,  who  was  the  treasurer,  knew  of  its 
existence  when  it  was  executed,  and  it  was  not  pretended  that 
it  was  not  made  on  the  day  it  purports  to  bear  date.  It  was 
properly  received  in  evidence,  therefore,  even  if  not  sufficiently 
proved  as  the  act  of  the  company,  to  show  a  full  knowledge  in 
A|[ears  of  the  condition  of  the  company  on  the  day  of  its  date. 
And  it  is  not  tc  be  presumed,  in  the  absence  of  all  proof  to  the 
contrary,  that  Beach,  who  was  involved  with  Mears  in  large  lia- 
bilities for  the  company,  did  not  know  of  its  existence.  This 
evidence  was  in  a  manner  collateral,  and  was  introduced  to  show 
an  additional  fact  tending  to  prove  the  insolvency  of  the  defend- 
ants, and  a  knowledge  on  the  part  c^  the  company.  It  was  not 
offered  as  between  the  parties  to  recover  its  amount,  but  to  prove 
an  act  or  acknowlerl gvnent  of  their  own  pecuniary  condition. 
The  mortgage  was  sufficientjy  proved  for  that  purpose,  and  it 
■was  properly  received  in  evidence. 


ST.  LAM  K£NC£— SEPTEMBEE,  1855.  505 


Hunter  r.  Hudson  River  Iron  and  Machine  Co. 


These  views  dispose  of  all  the  primary  ol)jections,  and  bring  us 
to  the  consideration  of  the  only  remaining  question  presented. 

It  is  insisted  that  the  motion  for  a  nonsuit  should  have  been 
granted  upon  the  grounds  urged  upon  the  trial.  The  first 
ground  in  relation  to  the  sufficiency  of  the  complaint,  has  been 
already  disposed  of.  The  second,  that  the  declarations  of 
Mears  were  made  without  authority,  and  which  is  the  principal 
one  relied  upon,  remains  to  be  considered.  It  has  been  already 
remarked  that  Mears  was  the  treasurer  and  general  agent  of 
the  company  and  was  particularly  employed  to  make  the  pur- 
chases of  the  goods  which  from  .time  to  time  were  effected,  in  New 
York  and  elsewhere,  on  credit.  That  he  had  the  custody  and  con- 
trol of  the  books,  the  making  of  the  notes,  and  the  transaction 
in  short  of  all  the  principal  business  affairs.  This  is  evident  not 
only  from  his  own  testimony  but  from  his  acts  which  had  been  and 
were  from  time  to  time  acquiesced  in  and  sanctioned  by  the  com- 
pany. The  other  officers  and  stockholders  depended  on  him  for 
all  information,  in  relation  to  its  condition.  Hence  the  assem- 
bling, and  calling  upon  him  for  the  statement  to  which  he  testified, 
and  to  which  allusion  has  been  before  made.  It  was  conceded 
on  the  argument  that  Mears  was  the  treasurer,  and  that  his 
powers  were  those  of  a  general  agent.  But  it  was  urged  that 
although  he  had  the  power  to  make  a  contract  for  the  purchase 
of  goods,  by  the  defendants,  on  credit,  and  could  make  and  exe- 
cute all  the  necessary  notes  and  other  papers  as  to  the  quantity 
purchased  and  the  times  of  credit  and  payment,  yet  he  had  no 
authority  to  speak  as  to  the  credit  of  the  company,  so  as  to 
bind  them  ;  without  an  additional  special  authority.  And  the 
naked  proposition  is  put  forth,  (for  the  argument  certainly 
amounts  to  that,)  that  an  irresponsible  agent,  one  intrusted 
with  the  management  of  the  whole  affairs  of  a  corporation,  who 
is  perfectly  cognizant  of  their  condition,  may  be  authorized  by 
them  to  purchase  goods  on  credit  and  to  execute  notes  in  their 
name  for  th^  amount  of  the  purchase  money,  and  yet  if  he 
makes  false  representations  in  regard  to  the  condition  of  the 
company,  who  receives  the  goods  thus  fraudulently  obtained,  it 
may  turn  around,  in  an  action  brought  by  the  vendors  to  reclaim 

Vol.  XX.  64 


506  CASES  IN  THE  SUPREME  COURT. 


Hunter  v.  Hudson  River  Iron  and  Macliine  Co. 


them,  and  say,  "you  trusted  to  the  word  of  our  agent.  He  had 
no  authority  to  say  we  were  solvent,  or  to  speak  of  our  credit, 
80  as  to  bind  us.  He  was  acting  entirely  without  the  scope  of 
his  authority,  and  you  must  look  to  him  for  your  remedy."  And 
this  too  by  an  association  of  men  forming  a  partnership  for 
particular  purposes,  and  the  agent  whose  acts  are  thus  sought  to 
be  repudiated,  one  of  the  partners,  having  more  knowledge  of 
the  affairs  of  the  company  than  all  the  other  associates.  Nei- 
ther the  cases  cited,  nor  the  elementary  writers  quoted,  sanction 
any  such  doctrine.  A  principal  is  liable  for  the  fraud  or  mis- 
conduct of  his  agent ;  and  he  not  only  cannot  take  any  benefit 
from  a  misrepresentation  fraudulently  made,  but  is  bound  to 
make  the  party  compensation  for  the  injury  sustained.  And 
this,  although  he  may  be  innocent ;  provided  the  agent  acted 
within  the  scope  of  his  authority.  There  need  not  be  express 
authority  to  make  a  particular  representation,  but  the  authority 
may  be  implied,  as  incident  to  a  general  authority.  (1  Par- 
sons  on  Cont.  62,  and  notes.  Angell  tj*  Atnes  on  Corp.  291, 
301,  302.  Story  on  Agency.  §§  45,  46  and  cases  cited.  3  Seld. 
364,  365.  11  Wend.  518.)  The  authority  to  Mears  to  pur- 
chase was  authority  to  make  the  necessary  representations  as  to 
the  credit  and  solvency  of  the  defendants  ;  just  as  much  so  as  it 
was  to  receive  the  goods  and  accept  the  delivery  for  the  com- 
pany. Such  authority  was  necessarily  incident  to  the  power  to 
purchase  on  credit.  The  declarations  were  part  of  the  res 
gestm,  and  were  equally  obligatory  upon  the  principal  as  if 
made  by  himself.  In  no  other  way  could  there  be  any  safety 
to  third  persons  in  dealing  with  an  agent.  The  defendants,  or 
those  composing  the  company,  knew  perfectly  well  that  one  of 
the  first  fiicts  necessary  for  them  to  establish  to  the  satisfaction 
of  a  vendor,  to  obtain  a  credit,  would  be  their  ability  to  pay. 
That  probably  the  very  first  question  (as  indeed  it  was)  would 
be,  what  are  your  pecuniary  circumstances  ?  "  How  are  you 
getting  along  ?"  Mears,  acting  under  his  authority  as  treas- 
urer and  agent,  and  with  a  full  knoAvledge,  as  the  jury  found,, 
answered  these  question  in  a  manner  to  satisfy  the  plaintiffs  of 
the  ability  of  the  company  to  pay,  and  succeeded  in  effecting 


ST.  .LAWEENCE— SEPTEMBER,  1855.  507 


Hunttn-  V.  Hudson  Kiver  Iron  and  Machine  Co. 

his  purchase.  And  even  if  the  other  defendants  did  not  know, 
at  the  time,  that  his  representations  were  false,  they  are  liable 
upon  the  principle  that  of  two  innocent  parties,  the  one  shall 
suffer  who,  by  his  agent  causes  the  injury,  and  will  in  all  such 
cases  receive  the  least  harm.  As  in  this  case,  the  plaintiffs 
parted  with  their  goods  upon  the  false  representations  of  the 
defendants'  agent,  they  were  delivered  to  the  defendants  with- 
out consideration.  And  the  plaintiffs  by  their  action  have  re- 
claimed them,  that  is  have  received  them  back  from  the  company 
who  have  paid  nothing  for  them,  and  seek  to  hold  them,  upon 
the  naked  assertion  that  they  are  not  bound  by  the  declarations 
of  the  fraudulent  agent — one  who  is  a  partner  with  them,  and 
is  to  participate  in  the  profits  of  his  own  fraud.  This,  clearly, 
cannot  be  the  law,  within  any  of  the  cases.  The  company  held 
Mears  out  to  the  world  as  their  principal  agent,  authorized  and 
empowered  to  transact  their  business  generally ;  and  whether 
the  principal  is  defrauded  by  his  representations,  or  not,  is  a 
matter  of  no  consequence,  in  the  application  of  the  principle  as 
to  liability  to  third  persons.  {Story  on  Agency^  §  452.)  The 
agent  was  apparently,  and  I  might  say  necessarily,  authorized 
to  make  the  representations  which  he  did,  else  the  purchase 
could  not  have  been  effected.  They  were  according  to  the  usual 
course  of  business  in  purchasing  goods  on  credit.  Mears  had 
so  purchased  before,  and  had  no  doubt  made  like  representa- 
tions. The  defendants  composing  the  company  all  well  knew 
that  the  goods  could  not  have  been  obtained,  without  thcni. 
They  sent  him  to  purchase,  as  a  man  on  whose  word  reliance 
could  be  placed.  And  they  as  a  corporation  are  liable  for  his 
acts  and  frauds  while  acting  apparently  within  the  limits  of  his 
authority,  in  the  same  manner  as  individuals.  {See  opinions  m 
the  case  of  The  Mechanics^  Bank  v.  The  New  York  and  New 
Haven  Rail  Road  Co.,  recently  decided  by  the  superior  court 
of  New  York.) 

I  think  the  defendants  are  also  liable  on  another  groQnd. 
Mears  was  not  only  the  treasurer  and  agent  of  the  company, 
but  he  was  a  member  of  it,  a  partner  in  a  joint  stock  associ- 
ation ;  and  his  knowledge  and  his  acts  were  the  knowledge  and 


508  CASES  IN  THE  SUPREME  COURT. 


*  .  Hunter  v.  Hudson  River  Iron  and  Macliine  Co. 

acts  of  Uij  partners,  within  the  principle  laid  down  in  Jiffrey  ? 
Blgelow,  (13  Wend.  518.) 

It  is  said  that  a  fair  construction  of  the  declarations  of  Mears 
would  not  authorize  the  plaintiffs  to  maintain  this  action.  Those 
representations  were  undoubtedly  made  with  an  object,  and  that 
object  was  to  induce  the  plaintiffs  to  believe  the  company 
w-ere  solvent  and  able  to  pay.  The  jury  have  so  found,  as  a 
question  of  fact,  and  that  and  all  other  questions  were  properly 
and  fairly  submitted  to  them,  as  no  exception  seems  to  have 
been  taken  to  the  charge. 

It  is  further  said  that  there  was  no  proof  that  the  company 
knew,  at  the  time,  that  the  representations  of  Mears  Avere  false. 
It  has  been  shown  that  this  was  not  necessary.  But  I  am  not 
prepared  to  say  there  was  no  proof  on  that  subject.  The  jury 
have  passed  upon  it,  and  found  in  faVor  of  the  plaintiffs  on  that 
as  well  as  the  other  facts  of  the  case.  The  defendants'  counsel 
must  have  overlooked  the  admission  that  the  company  was  in- 
solvent for  many  thousands  of  dollars,  as  well  as  the  testimony  of 
Mears  and  the  other  evidence  in  the  case,  when  he  gravely  put 
forth  as  a  4th  ground  of  nonsuit,  that  there  was  a  total  absence 
of  proof  that  the  defendants  were  insolvent  at  the  time  the  ro- 
presentations  were  made.  The  evidence  was  abundant  and 
overwhelming  on  that  subject,  and  the  jury  have  found,  and 
well  found,  in  my  judgment,  that  Mears  well  knew  the  fact, 
when  he  made  the  purchase. 

I  can  see  no  good  reason,  after  a  careful  examination  of  all 
the  facts  in  this  case,  for  disturbing  the  verdict ;  and  judgment 
must  be  rendered  for  the  plaintiffs, 

[St.  Lawrence  General  Term,  Septembers,  1855.  C.  L.  Allen,  locket 
Rud  James,  Justices.] 


ST.  LAWRENCE— SEPTEMBER,  1855.  509 


Stone  vs.  Sprague. 

/  A  executory  contract,  for  the  sale  and  purchase  of  land,  was  made  betwee'^  the 
plaintiff  and  defendant,  by  which  the  latter  was  to  have  the  occupation  and 
possession  of  the  premises,  so  long  as  he  should  fulfill  and  comply  with  the 
stipulations  of  the  contract.  But  if  he  should  make  default,  then  the  agree'nent 
should  be  void,  and  the  plaintiff  was  to  be  at  liberty  to  immediately  enter  iiitd 
the  possession  and  occupancy  of  the  premises,  and  was  to  be  forever  discha'cred 
from  the  agreement.  Held  that  upon  a  breach  of  the  contiact  by  the  defendant, 
the  plaintiff  had  a  right  to  enter,  without  notice,  or  demand  of  possesi»ion. 

The  agreement  also  provided  that  on  the  payment  of  S745,  in  five  years,  with 
annual  interest,  the  defendant  should  be  entitled  to  a  deed.  On  the  day  be- 
fore the  time  for  payment  expired,  the  defendant  tendered  the  plaintiff  the 
amount,  in  specie,  and  requested  a  deed.  The  plaintiff  replied  that  he  would 
not  receive  any  thing,  nor  give  a  deed  ;  placing  his  refusal  upon  the  ground 
that  he  had  not  enjoyed  such  privileges,  in  the  house,  as  he  ought  to  have  had, 
and  saying  that  he  and  the  defendant  must  settle,  and  he  would  not  give  any 
deed  till  they  did.  The  parties  then  agreed  to  leave  the  question  as  to  dam- 
ages, to  M.  and  W..  and  the  plaintiff  agreed  to  see  W.  and  ascertain  when  he 
could  attend  to  the  matter.  An  indorsement  was  then  made  upon  the  con- 
tract, signed  by  the  plaintiff  but  not  under  seal,  extending  the  time  of  pay- 
ment to  the  25th  of  April.  On  or  about  that  day  the  money  was  again 
offered  to  the  plaintiff  and  a  deed  requested.  He  again  refused  to  receive  tho 
money,  or  to  convey ;  saying  he  had  not  been  able  to  get  W.  to  attend  to  it : 
another  indorsement  was  then  made  on  the  contract,  extending  the  time  of  pay- 
ment to  the  15th  of  May.  A  few  days  before  the  15th  of  May  the  defendant 
again  tendered  the  money  to  the  plaintiff,  if  he  would  execute  a  deed  ;  which 
was  refused.  Hfld  that  the  defendant  had  substantially  complied  with  the 
terms  of  the  agreement,  so  as  to  be  entitled  to  a  deed  for  the  premises ;'  and 
that,  the  defendant  having  been  prevented  from  performing  the  contract,  at  the 
day,  by  the  act  of  the  plaintiff,  the  latter  could  not  be  allowed  to  take  advan- 
tage of  his  own  wrong,  by  insisting  that  the  time  for  performing  the  agree- 
ment by  the  defendant  had  expired. 

Held  also,  that  proof  that  at  the  time  of  the  last  tender,  and  at  other  times,  the 
plaintiff'  agreed  by  parol,  with  the  defendant,  not  to  take  advantage  of  the 
expiration  of  the  contract,  saying  that  the  lapse  of  a  few  days  would  not  make 
any  difference  with  him ;  and  that  the  money,  together  with  a  deed,  ready  to 
Ije  executed'  by  the  plaintiff,  were  tendered,  on  the  18th  of  May,  three  days 
after  the  expiration  of  the  time,  as  last  extended,  was  proper  evidence,  and 
ought  to  have  been  received. 

Tlie  time  for  performing  a  written  contract  under  seal,  may  be  enlarged  by  parol. 

A  strictly  legal  tender  may  be  waived,  by  an  absolute  refusal  to  receive  the 
money,  01  do  the  art  required.  This  is  upon  the  principle  that  no  man  is 
bound  to  perform  a  nugatory  act. 

Where  there  is  a  mutual  obligation  on  a  purchaser  to  pay  the  purchase  money 


/-J  10  CASES  IN  THE  SUPREME  COURT. 

*  Stone  V.  Sprague. 

and  on  the  vendor  to  convey  the  property  purchased,  an  offer  and  readiness  to 
peiibrm  on  the  part  of  the  purchaser,  is  sufficient,  without  tendering  a  dee<l 
.  i-eady  to  be  executed  by  the  vendor  ;  especially  where  the  vendor  refuses  to 
convey  at  all. 

THIS  was  an  action  of  ejectment,  brought  to  recover  a  lot  of 
land  at  Port  Henry,  in  the  county  of  Essex.  The  action 
•was  tried  at  the  circuit  in  that  county  in  July,  1854.  The 
plaintiff's  counsel  introduced  in  evidence  the  counterpart  of  the 
agreement,  a  copy  of  which  it  was  admitted  was  contained  in 
the  answer.  That  agreement  was  dated  the  9th  day  of  April, 
1848,  and  was  executed  by  the  parties.  The  plaintiff  agreed 
to  sell,  and  the  defendant  to  purchase,  the  lot  in  question^ 
and  upon  which  it  was  recited  therein  the  defendant  had 
erected  a  brick  dwelling  house,  for  the  sum  of  $742,47,  to  bo 
paid  in  five  j^ears  from  the  date,  with  annual  interest.  The  de- 
fendant was  to  be  at  liberty  to  possess  and  occupy  the  premises 
so  long  as  he  complied  with  "  all  the  stipulations  and  agree- 
ments to  be  performed  on  his  part,  and  no  longer."  The  plain- 
tiff agreed  to  execute  and  deliver  to  the  defendant  a  warranty 
deed  of  the  premises,  on  payment  of  the  principal  and  interest, 
in  the  manner  and  at  the  times  mentioned  in  the  agreement ; 
but  in  case  of  default  in  the  payment  of  the  principal  and  in- 
terest, at  the  time  or  times  when  they  became  due,  or  of  failure 
in  the  performance  by  the  defendant  of  any  of  the  conditions  of 
the  agreement,  it  was  to  become  null  and  void,  and  the  plaintiff 
was  to  be  at  liberty  to  immediately  enter  into  the  possession 
and  occupancy  of  the  premises  and  to  be  forever  discharged 
from  the  agreement.  The  plaintiff  was  to  have  the  right  to 
occupy  the  brick  part  of  the  house  on  the  lot,  as  he  then  occu- 
pied it ;  and  so  long  as  he  so  occupied  it,  he  was  to  allow  the 
defendant  the  interest  of  the  principal  sum  to  be  paid  for  the 
premises,  as  rent.  There  Avere  other  stipulations  contained  in 
the  agreement,  which  was  under  seal,  but  it  is  not  necessary  to 
recite  them  here.  The  plaintiff  proved  that  he  had  occupied 
the  brick  part  of  the  house  on  the  premises  described  in  the 
agreement,  before  and  since  the  date  of  the  contract,  up  to  the 
time  of  trial,  and  that  the  defendant  had  been  in  possession  of 


ST.  LAWRENCE— SEPTEMBER,  1855.  5\\ 

Stone  V.  Sprague. 

the  remaining  part  of  the  said  premises,  and  that  the  value  or 
yearly  use  of  said  part,  was  worth  $50  a  year. 

The  plaintiff  having  here  rested,  the  defendant's  counsel 
moved  for  a  nonsuit  on  the  following  grounds  :  1.  That  the 
plaintiff  had  failed  to  prove  a  cause  of  action.  2.  That  the 
plaintiff  should  have  shown  a  demand  of  the  possession  of  the 
premises,  previous  to  the  commencement  of  this  action.  3.  That 
the  defendant  was  entitled  to  notice  to  quit.  The  motion  was 
overruled  by  the  court,  and  the  defendant's  counsel  excepted. 
The  defendant  then  proved  the  execution  by  the  plaintiff  of  two 
several  extensions  of  the  agreement,  which  were  indorsed  on 
the  counterpart  held  by  the  defendant,  and  which  were  read  in 
evidence.  The  first  was  as  follows  :  "  I  hereby  agree  to  extend 
all  the  conditions  of  payment,  and  other  matters  within  contain- 
ed, to  the  25th  of  April,  1853.  Port  Henry,  April  8,  1853." 
(Signed  by   the  plaintiff.)     The   second  extension  read  thus  : 

"  I  hereby  agree  to  further  extend  all  the  conditions  of  pay- 
ment and  other  matters  within  contained,  from  the  25th  of 
April,  1853,  to  the  15th  of  May,  1853.  Port  Henry,  April  23, 
1853."     (Signed  by  the  plaintiff.) 

Chilion  A.  Trimble,  a  witness  for  the  defendant,  testified  as 
follows  :  "  Defendant  engaged  me  to  raise  the  money  and  fulfill 
the  contract  with  the  plaintiff,  and  was  to  give  me  security  on 
the  place.  I  had  raised  the  funds,  and  Avent  up  the  day  before 
the  original  cont<|ict  expired,  and  had  an  interview  with  the 
plaintiff,  at  which  the  defendant  was  present.  I  told  the  plain- 
tiff I  had  the  specie  to  pay  up  the  contract,  and  asked  him  if  he 
would  receive  it  and  give  a  deed.  He  said  he  would  not  receive 
any  thing,  nor  give  a  deed.  He  seemed  to  complain  that  he 
had  not  had  such  privileges  as  he  ought  to  have,  in  the  house. 
He  said  they  must  settle,  and  he  would  not  give  a  deed  till 
they  did.  I  suggested  to  them  that  they  had  better  settle  or 
leave  it  out  to  men.  They  agreed  to  leave  the  question  as  to 
damages  to  Samuel  Murdock  and  James  S.  Whallon.  The 
plaintiff  said  he  would  see  Whallon,  and  see  at  what  time  they 
could  attend  to  it.  I  asked  the  plaintiff  if  he  should  insist 
on  the  specie,   and  he  said  he  would  not."     The  witness  fur- 


512  CASES  IN  THE  SUPREME  COURT. 


Stone  V.  Sprague. 


ther  testified  that  he  went  and  saw  the  plaintiff,  at  the  tirao 
the  first  extension  ran  out ;  that  he  had  the  money,  and  again 
offered  to  pay  it  to  the  plaintiff,  but  he  refused  to  receive  it, 
He  said  he  could  not  get  Whallon  to  attend  to  settle  the  OLues- 
tion.  The  witness  told  him  he  had  the  money  ready  for  him 
and  he  could  have  it  at  any  time  when  he  would  give  a  deed. 
lie  refused  to  take  the  money,  and  made  the  second  extension. 
A  few  days  before  the  time  expired  of  the  last  extension,  the 
witness  again  offered  to  pay  the  plaintiff  the  money,  but  he 
again  refused  to  receive  it.  The  defendant's  counsel  here  offer- 
ed to  show  that  the  plaintiff,  in  view  of  the  delay  in  obtaining 
Whallon  to  attend  to  the  settlement  of  the  damajjes,  agreed 
with  the  defendant,  by  parol,  not  to  take  advantage  of  the  expi- 
ration of  the  contract,  and  said  that  the  lapse  of  a  few  days 
would  make  no  difference  ;  that  all  he  wanted  was  his  money. 
This  offer  was  objected  to,  and  rejected  by  the  court,  on  the 
ground  that  the  agreement  was  by  parol,  and  the  defendant's 
counsel  excepted.  The  defendant's  counsel  then  offered  to  show 
that  on  the  18th  day  of  May,  1853,  the  defendant  tendered  to 
the  plaintiff  $745  in  money,  and  a  blank  deed  covering  the 
premises,  and  dema,nded  its  execution,  and  that  the  plaintiff  re- 
fused to  receive  the  money  and  execute  the  deed.  This  offer 
was  objected  to,  by  the  plaintiff's  counsel,  and  rejected  by  the 
court,  and  the  defendant's  counsel  excepted,  The  defendant's 
counsel  then  produced  in  court  $745  in  specif  being  the  money 
before  offered  to  the  plaintiff,  and  offered  to  deposit  the  same, 
subject  to  the  direction  of  the  court ;  which  offer  was  objected 
to,  and  overruled  by  the  court,  and  the  defendant's  coijnsel  ex 
ccpted. 

The  court  then  charged  the  jury  that  the  plaintiff  was  enti 
tied  to  recover,  and  that  the  evidence  given  by  the  defendant 
did  not  entitle  him  to  any  relief  whatever ;  and  directed  the 
jury  to  find  a  verdict  for  the  plaintiff  for  the  possession  of  the 
premises,  and  damages  'at  the  rate  of  $50  a  year,  for  the  use 
of  the  premises.  The  defendant  excepted,  and  the  jury  found 
a  verdict  accordinsr  to  the  direction  of  the  court.     The  case  now 


ST.  L A WPtEJTCE— SEPTEMBER,  1855.  5);^ 

Stone  V.  Sprague. 

same  up  on  a  bill  of  exceptions,  and  a  motion  was  made  for  a 
new  trial. 

A.  R.  Waldo  and  O.  Kellogg,  for  the  plaintiff. 

J.  P.  Butler  and  H.  H.  Ross,  for  the  defendant. 

By  the  Court,  C.  L.  Allen,  P.  J.  I  do  not  think  the  de- 
fendant was  entitled  to  notice  to  quit.  The  case  of  Doolittle  v. 
Eddy,  (7  Barb.  74,)  decided  in  this  district,  establishes  the  prop- 
osition, if  it  was  not  settled  by  previous  cases,  that  an  execu- 
tory contract  for  the  sale  and  purchase  of  land,  giving  to  the 
purchaser  a  right  to  enter  and  possess  the  premises  until  default 
in  the  payment  of  the  purchase  money,  without  any  reservation 
of  rent,  or  fixed  time,  is,  as  respects  the  possession,  a  license  and 
not  a  lease,  and  the  relation  of  landlord  and  tenant  does  not  ex- 
ist. The  defendant  here  was  to  have  the  occupation  and  posses- 
sion of  the  premises  as  long  as  he  should  fulfill  and  comply  with 
the  stipulations  of  the  contract.  But  if  he  should  make  default 
then  the  agreement  should  be  void,  and  the  plaintiff  was  to  be 
at  liberty  "  to  immediately  enter  into  the  possession  and  occu- 
pancy of  the  premises  and  Avas  to  be  forever  discharged  from  the 
agreement."  The  case  does  not  differ,  in  this  particular,  from 
the  one  cited  ;  and  if  the  contract  was  broken  on  the  part  of  the 
defendant,  the  plaintiff  had  a  right  to  enter  without  notice,  or 
demand  of  possession. 

The  material  and  important  question  in  this  case  is,  whether 
the  defendant  had  not  substantially  complied  with  the  terms  of 
the  agreement,  so  as  to  be  entitled  to  a  deed  for  the  premises. 
The  agreement  provided  that  on  the  payment  of  $745  in  five 
years,  with  annual  interest,  the  defendant  should  be  entitled  to 
a  deed ;  and  if  the  plaintiff  continued  to  occupy  the  brick  part 
of  the  dwelling  house,  such  occupation  was  to  be  considered  as 
equivalent  to  the  interest,  by  way  of  rent.  There  is  no  dispute 
as  to  the  fact  of  occupation.  It  was  proved,  and  indeed  seemed 
to  be  conceded,  on  the  trial,  that  the  plaintiff  had  occupied  this 
part  of  the  dwelling  house,  from  the   time  of  executing  tiie 

Vol.  XX.  65 


514  CASES  IN  THE  SUPEEME  CO  (JET. 

Stone  V  Sprague. 

agreement  to  the  commencement  of  this  action.  Consec  uently 
the  interest  was  paid,  and  it  was  only  necessary  for  the  defendant 
to  pay  the  principal  sum,  at  the  time  appointed  in  the  contract,  to 
entitle  him  to  a  deed  of  the  premises  in  question.  The  testimony 
is  that  on  the  day  before  the  time  for  payment  expired,  an  inter- 
view was  had  with  the  plaintiff,  during  which  the  amount  was 
tendered,  in  specie,  and  a  deed  requested.  He  replied  that  he 
would  not  receive  any  thing,  nor  give  a  deed.  Here  then  was 
an  absolute  tender  of  the  mone}',  a  refusal  to  receive,  and  to 
execute  a  conveyance.  It  is  true  no  deed  was  offered  by  the 
defendant,  at  that  time,  ready  for  execution.  But  that  was  not 
necessary,  and  if  it  had  been,  the  general  rule  that  a  strictly 
legal  tender  may  be  waived,  by  an  absolute  refusal  to  receive 
the  money  or  do  the  act  required,  clearly  applies,  on  the  prin- 
ciple that  no  man  is  bound  to  perform  a  nugatory  act.  Where 
there  is  a  mutual  obligation  on  a  purchaser  to  pay  the  purchase 
money,  and  on  the  vendor  to  convey  the  property  purchased,  an 
offer  and  readiness  to  perform  on  the  part  of  the  purchaser,  is 
suflicient,  especially  where  the  vendor  refuses  to  convey  at  all 
{Bellinger  v.  Kitts^  6  Barb.  273.)  It  appears  to  me  that  upon 
this  part  of  the  case  alone,  sufficient  is  shown  to  defeat  the  plain- 
tiff's right  of  recovery. 

But  the  plaintiff  insists  that  his  refusal  to  convey  at  that 
time,  was  based  upon  the  fact  that  he  had  not  enjoyed  such 
privileges  in  the  house  as  he  ought  to  have  done.  He  said  they 
must  settle,  and  he  would  not  give  a  deed  till  they  did.  There 
was  no  proof,  nor  was  any  complaint  of  that  kind  ui'ged  or  pre- 
tended on  the  trial.  The  parties,  however,  agreed  to  leave  the 
question  as  to  damages  to  Samuel  Murdock  and  James  S.  Whal- 
lon,  and  the  plaintiff  was  to  see  Whallon,  and  ascertain  when  he 
could  attend  to  the  matter.  The  first  indorsement  was  then 
made  upon  the  contract,  and  signed  by  the  plaintiff,  but  not  un- 
der seal,  agreeing  to  extend  the  time  of  payment  from  the  9tli 
to  the  25th  of  April,  1853.  This  was  done,  undoubtedly,  to 
enable  the  arbitrators  to  determine  in  the  meantime,  as  to  what 
amount  of  damnges,  if  any.  the  plaintiff  was  entitled  to.  On 
the  25th  of  April,  or  about  that  time,  the  money  was  again  offer- 


ST.  LAWRENCE— SEPTEMBER,  1855.  5]5 

Stone  V.  Sprague. 

ed  to  tlie  plaintiiF  and  a  deed  requested.  He  refused  to  receive 
the  money  or  to  convey.  He  said  he  had  not  been  able  to  get 
Whnllon  to  attend  to  it,  and  then  indorsed  another  extension  of 
the  time  of  payment  to  the  loth  of  May  following,  Avhich  would 
be  Sunday.  A  fcAv  days  before  the  15th.  the  plaintiff  was  again 
offered  his  money,  if  he  would  execute  a  deed,  which  he  refused. 
The  defendant  offered  to  show  that  at  this  time,  and  at  others, 
the  plaintiff,  in  view  of  the  delay  in  procuring  Whallon  to  at- 
tend to  the  settlement  of  the  damages,  agreed  by  parol,  with  the 
defendant,  not  to  take  advantage  of  the  expiration  of  the  con- 
tract ;  and  that  he  stated  to  the  defendant  that  the  lapse  of  a 
few  days  would  not  make  any  difference  with  him.  And  the 
defendant  proposed  to  follow  up  that  proof  by  showing  a  tender 
of  the  money,  and  of  a  deed  ready  to  be  executed  by  the  plain- 
tiff, on  the  18th  of  May,  1853,  three  days  after  the  expiration 
of  the  time  by  the  last  extension.  This  testimony  Avas  objected 
to  by  the  plaintiff  and  rejected  by  the  judge,  on  the  ground  that 
the  agreement  was  by  parol.  And  he  seems  to  have  regarded 
the  extension  of  time  as  entirely  void,  because  not  under  seal, 
as  he  charged  the  jury  that  the  evidence  on  the  part  of  the  de- 
fendant was  wholly  insufficient  to  constitute  a  defense,  and  that 
the  plaintiff  was  entitled  to  recover. 

I  think  the  learned  justice  erred.  It  lias  repeatedly  been' 
decided  that  the  time  of  performing  a  written  contract  under 
seal  may  be  enlarged  by  parol.  In  the  case  of  The  Mayor  6fc. 
of  New  York  v.  Butler,  (1  Barh.  S.  C.  Rep.  325,  337,)  the 
court  remarked  that  such  an  extension  is  in  effect  a  waiver  of  a 
strict  performance  of  the  conditions  of  the  contract ;  that  no 
party  can  insist  upon  a  condition  precedent,  when  its  non-per- 
formance has  been  caused  by  himself;  that  there  maybe  an 
effectual  waiver  by  parol  of  a  condition  specified  in  a  written  or 
even  a  sealed  contract.  "  It  is  a  sound  principle,"  says  Ch.  J. 
Thompson  in  Fleming  v.  Gilbert,  (3  John.  528.)  ''  that  he  who 
prevents  a  thing-being  done,  shall  not  avail  himself  of  the  non- 
performance he  has  occasioned."  The  case  of  Wisv)nll  v.  Mc- 
Gown,  (2  Barb.  S.  C.  Rep.  270,)  relied  upon  by  the  plaintiff's 
counsel,  does  not  militate  against  this  doctrine.     The  court  sny, 


5ie  CASES  I>f  THE  SUPREME  COURT. 


Stone  1}.  Sj)rague. 


in  that  case,  that  courts  of  equity  Avill  interfere  in  i;ivor  of  pai 
ties  who  Avere  not  ready  to  perform  their  agreement  at  the  (hiy, 
where  a  party  has  failed,  through  some  unforeseen  accident,  or 
V)here  there  is  something  indicating  a  waiver  of  the  objection^ 
by  the  other  party.  But  the  case  of  Esmond  v.  Van  Benscho- 
ten,  (12  Barb.  366,)  adjudicated  in  this  district,  settles  this 
question  beyond  dispute,  and  decides  that  "  it  is  com,petent  for 
parties  on  the  expiration  of  a  sealed  contract,  to  enlarge  the 
time  for  performance  by  parol." 

The  extension  of  the  time  here  was  occasioned  by  the  plain- 
tiff. The  defendant  was  ready,  at  the  day  appointed,  to  pay  the 
money  and  receive  his  deed.  The  plaintiff  refused,  and  indorsed 
an  extension  of  the  time  of  payment  on  the  contract,  to  enable 
him  in  the  meantime  to  procure  the  services  of  Mr.  Whallon,  in 
assisting  Mr.  Murdock  to  ascertain  the  amount  of  damases  to 
which  he  was  entitled.  He  failed  on  his  part  to  procure  such 
attendance.  He  suffered  the  time  again  and  again  to  elapse  for 
the  fulfillment  of  the  contract,  and  finally  attempted  to  shield 
himself  under  the  technicality  that  the  time  for  performance  of 
the  contract  had  expired  ;  that  the  agreement  to  extend  it  was 
not  under  seal,  and  was  without  consideration  and  void  ;  and 
that  the  tender  afterwards  made,  which  he  admits  was  sufficient 
as  to  amount,  was  too  late.  In  my  judgment,  to  allow  these 
allegations  to  avail,  would  be  to  permit  the  plaintiff  to  take  a 
most  unjust  advantage  of  his  own  wrong,  and  contrary  to  all  the 
cases  bearing  upon  the  question.  The  plaintiff  was  not  entitled 
to  recover,  and  should  at  least  have  been  nonsuited,  if  the  de- 
fendant was  not  indeed  entitled  to  the  affirmative  relief  which 
he  demands  in  his  answer. 

It  is  objected  that  the  answer  is  not  sufficient  for  that  purpose. 
If  this  were  so,  I  should  be  inclined  to  permit  the  defendant  to 
amend,  as  I  consider  his  claim  for  relief  clear  and  well  founded. 
In  actions  of  a  legal  character  it  now  seems  to  be  well  settled 
that  any  defense,  whether  legal  or  equitable,  may  be  interposed. 
That  the  same  facts  which  would  formerly  have  entitled  a  de< 
fendant  to  be  relieved  in  equity  may  be  set  up  in  his  answer  as 
a  full  defense.     {Dobson  v.  Pearce,  1  Duer,  142.     8  Hoic.  416. 


ST.  LAWRENCE— SEPTEMBER,  1855.  51 7 

Stone  V.  Sprague. 

1  Wliitt.  507  and  cases  cited.  Haire  v.  Bakery  1  Seidell's 
Rep.  357.) 

This  court  said,  in  Deiveij  v,  Hoag;  decided  at  May  term, 
1854,  on  appeal  from  the  decision  of  Justice  Hand,  (15  Barb. 
365,  369;)  that  in  order  to  avail  himself  of  an  equitable  defense, 
"  the  defendant  must  become  an  actor  in  respect  to  his  claim, 
and  his  ansAver  must  contain  all  the  elements  of  a  bill  for  a  spe- 
cific performance,  and  he  must  ask  and  obtain  affirmative  relief. 
The  judgment  must  be  for  the  plaintiif  that  he  recover  the  land, 
or  for  the  defendant  that  the  plaintiff  convey  to  him  on  such 
terms  as  the  court  shall  adjudge."  In  that  case  the  defendant 
claimed  710  affirmative  relief,  and  leave  was  given  to  him  to 
amend.  The  court,  however  thought  that  the  cause  of  action 
did  not  arise  out  of  the  contract  or  transaction  set  forth  in  the 
complaint.  Here  the  defense  wholly  arises  out  of  the  contract 
under  which  the  defendant  went  into  possession  of  the  premises, 
and  for  a  breach  of  which  the  plaintiff  now  seeks  to  recover  pos- 
session. The  defendant  therefore  brings  himself  within  the 
1st  subdivision  of  sec.  150  of  the  code,  and  is  entitled  to  avail 
himself  of  the  defense  which  he  sets  up.  The  case  of  Foot  v. 
Hadav-ay,  relied  upon  by  the  plaintiff,  does  not  impugn  the  de- 
cision in  Dewey  v.  Hoag.  but  coincides  with  and  affirms  it. 

I  do  not  say  that  the  answer  is  insufficient.  I  am  rather  in- 
clined to  think  that  it  is  not.  Be  that  as  it  may.  I  am  of  opinion 
that  a  new  trial  should  be  granted,  with  costs  to  abide  the  event. 
The  defendant  should  have  leave  to  amend  his  answer,  if  he 
deems  it  necessary.  And  unless  the  proof  should  materially 
differ  from  that  produced  on  the  former  trial,  the  plaintiff  should 
be  adjudged  to  convey  to  the  defendant  the  premises  in  question, 
on  payment  of  the  sum  mentioned  in  the  contract. 

Judgment  accordingly. 

[St.  Lawrence  General  Term,  September  3,  1855.     C.  L.  Allen,  Docket 
and  James,  Justices.] 


20    518 
lOh  Uo 


5 IS  CASES  IN"  THE  SUPREME  COURT. 


The  People,  ex  rel.  Marshall,  vs.  The  Ravenswood,  Hal- 
Lett's  Cove  and  Williamsburgh  Turnpike  anii 
Bridge  Company. 

A  plaintiff  admits  tlie  corporate  existence  of  a  corporation,  by  suing  it  by  ita 
corporate  name.  And  this  admission  will  not  be  overcome  by  his  alleging,  in 
the  complaint,  facts  which,  if  true,  would  go  to  show  that  the  defendant  had 
failed  to  comply  with  such  terms  as  by  the  charter  were  conditions  precedent 
to  its  organization  as  a  coqjorate  body. 

In  such  a  case  the  latter  allegations  in  tlie  complaint  may  be  disregarded,  as  Ije- 
ing  iirelevant  and  impertinent;  inasmuch  as  a  plaintiff  cannot  be  permitted 
to  treat  the  defendant  as  a  corporation  in  fact,  for  the  purpose  of  suing  it,  and 
then  insist  that  it  never  performed  those  acts,  without  performing  which  it 
could  not  liave  acquired  existence. 

Where  tlie  complaint,  in  an  action  against  a  corporation,  alleged  that  the  defend- 
ant had  violated  its  charter,  and  also  that  it  had  omitted  to  do  certain  things 
claimed  to  be  essential  to  give  it  a  legal,  corporate  existence,  and  prayed  that 
the  defendant  might  be  excluded  from  the  francliises  claimed  by  it,  and  that 
the  coi-poration  might  be  dissolved  ;  Held,  on  general  demurrer  to  the  whole 
coni])laint,  that  the  complaint,  as  a  wAoZe,  was  good;  it  containing  but  one 
subject  matter,  viz :  the  right  of  the  defendant  to  continue  to  exercise  certain 
franchises.     Clerke,  J.  dissented. 

APPEAL  from  a  judgment  entered  at  a  special  term,  overrul- 
ing a  demurrer  to  the  complaint,  with  costs.  The  com- 
plaint alleged  that  the  defendants,  who  claim  to  be  a  corporation, 
created  by  and  under  the  act  of  the  legislature  of  this  state, 
entitled  "  An  act  to  incorporate  the  Ravenswood,  Ilallett's  Cove 
and  Williamsburgh  Turnpike  and  Bridge  Company,"  passed 
April  18th.  1838.  and  an  act,  entitled,  "  An  act  to  amend  the  char- 
ter of  the  Ravenswood,  Hallett's  Cove  and  Williamsburgh  Turn- 
pike and  Bridge  Company,"  passed  April  21st,  1840.  had, 
in  the  county  of  Kings,  for  the  space  of  six  years,  now  last 
past,  and  upwards,  used  and  still  did  use,  without  any  legal 
authority,  the  following  privileges  and  franchises,  to  wit :  that 
of  being  a  body  politic  and  corporate  in  law,  fact  and  name,  by 
the  name  of  the  Ravenswood,  Hallett's  Cove  and  Williamsburgh 
Turnpike  and  Bridge  Company,  and  by  the  same  name,  to 
plead  and  be  impleaded,  answer  and  be  answered  unto,  and  alsc 
the  following  privileges  and  franchises,  to  wit :  that  of  demand 
ing  and  receiving  from    all  persons   passing  over  the   bridge 


I 


NEW  YORK— SEPTEMBER,  1855.  519 

The  People  v.  Ravenswood,  &c.  Turnpike  and  Bridge  Co. 

erected  by  the  defendants  over  Newton  creek,  or  over  the  bridge 
erected  by  them  over  Bushwick  creek,  certain  specified  tolls  ; 
(including  several  instances  in  which  no  tolls  were  legally 
chargeable,  the  persons  of  ■whom  they  claimed  the  right  to  re- 
ceive the  same,  being  exempt  by  law.)  All  which  said  liberties, 
privileges  and  franchises,  the  defendants,  during  all  the  time 
aforesaid  had  usurped,  and  still  did  usurp,  as  the  plaintiffs  were 
informed  and  believed.  And  the  plaintiffs  for  a  more  particu- 
lar statement  and  specification,  further  showed  upon  information 
and  belief,  "  that  the  capital  stock  of  the  defendants  never  has 
been  nor  is  it  now  twenty  thousand  dollars,  nor  did  any  persons 
ever  become  stockholders,  pursuant  to  the  said  acts,  or  either 
of  them.  And  also,  that  the  Ravenswood,  Hallett's  Cove  and 
Williamsburgh  turnpike  road  never  was,  and  is  pot  now  laid  out 
by  defendants,  not  less  than  four  rods  wide,  and  that  twenty- 
two  feet  of  such  width,  never  was,  nor  is  it  now  bedded  with 
stone,  gravel,  sound  wood  or  other  hard  substance,  well  com- 
pacted, and  of  sufficient  depth  to  secure  a  good  and  solid  foun- 
dation, by  the  defendants,  and  also  said  road  never  was,  and  is 
not  now  faced  with  gravel,  or  broken  stone,  of  a  depth  not  less 
than  nine  inches,  in  such  manner  as  to  secure  a  firm  and  even 
surface,  rising  in  the  middle  by  a  gradual  arch,  by  the  defend- 
ants, and  also  that  the  ditches  on  each  side  of  said  road,  when 
practicable,  never  were,  nor  are  they  now  so  made  as  to  render 
easy  the  passing  of  a  sleigh  thereon,  by  the  defendants,  and 
that  they  never  were,  nor  are  they  now  so  formed  by  the  de- 
fendants as  to  permit  carriages  conveniently  to  pass  on  and  off 
the  said  turnpike,  where  it  was  or  is  intersected  by  other  roads, 
and  also,  that  the  said  turnpike  road  never  was  and  is  not  now 
u\ade  by  the  defendants  of  such  width  as  was  and  is  practicable, 
not  less  than  twenty-two  feet  in  any  one  place,  and  also  that  the 
lower  side  where  it  was  and  is  not  of  full  width  never  was,  and 
is  not  now  furnished  with  a  strong  and  sufficient  fender  or  rail- 
ing, of  the  height  of  at  least  four  feet  above  the  surface  of  the 
said  road,  along  which  said  fender  ought  to  have  been  and  to  be 
constructed,  and  also,  that  no  milestone  or  post  ever  was,  or  now 
is  erected  or  maintained  by  the  defendants  on  each  mile  of  the 


520  CASES  IN  THE  SUPREME  COURT. 


The  People  v.  Ravenswood,  &c.  Turnpike  and  Bridge  Co. 


road,  on  which  was  or  is  fairly  or  legibly  marked  or  inscribed 
the  distance  of  such  stone  or  post  from  the  place  of  the  com 
mencement  of  the  road ;  also,  that  the  defendants  have  never 
kept  the  whole  of  said  road  in  turnpike  order  and  repair  ;  and 
also,  that  they  have  never  constructed,  completed  and  kept  in 
constant  repair  said  road,  with  all  the  necessary  buildings  and 
appurtenances  ;  and  also,  that  the  defendants  never  have  re- 
ported to  the  comptroller,  an  account  of  the  expenses  of  the 
alleged  construction  of  said  road  ;  and  also,  that  the  defend- 
ants have  not  exhibited,  annually,  to  the  comptroller,  an  account 
of  the  sums  of  money  arising  from  tolls,  of  the  disbursements, 
and  of  the  dividends  actually  made  within  the  year  ;  and  also, 
that  defendants  never  gave  notice  to  the  governor  that  said  road, 
or  any  ten  miles  thereof,  was  completed  so  that  he  might  ap- 
point three  discreet  freeholders,  to  view  the  road,  and  report  to 
him  in  writing,  whether  said  road  was  completed  in  a  workman- 
like manner,  according  to  the  requisitions  of  the  title  above 
specified,  and  of  said  alleged  act  of  incorporation  ;  and  also, 
that  no  governor  of  this  state,  has  ever,  by  license  under  his 
hand,  and  the  privy  seal  of  the  state,  permitted  the  defendants 
to  erect  any  gates  and  turnpike  on  sail  road  for  the  collection 
of  any  tolls  ;  and  also,  that  the  defendants  did  not,  within  two 
years  from  their  incorporation,  commence  the  construction  of 
the  said  road,  described  in  the  act  of  incorporation  ;  and  also, 
that  the  defendants  did  not,  within  five  years  from  such  incor- 
poration, complete  the  said  road,  according  to  the  provisions  of 
title  ],  chapter  18,  and  part  1  of  the  revised  statutes,  and  of 
their  act  of  incorporation.  And  also,  that  the  defendants  now 
are  and  for  more  than  five  years  last  past  have  been  insolvent, 
and  also  for  such  time  have  neglected  to  redeem  or  fully  pay 
their  notes,  claims,  demands,  judgments  and  other  evidences  of 
debt.  And  also,  that  the  assoc-iation  intending  to  apply  and 
who  did  apply  to  the  legislature,  for  the  act  of  incorporation  of 
the  defendants,  and  that  the  defendants  in  their  application  for 
the  act,  altering,  amending  and  extending  their  charter,  passed 
April  21st,  1840,  did  not  cause  notice  of  such  application  to  be 
published,  as  required  by  the  statute  in  such  cases."     And  the 


NEW  YORK— SEPTEMBER,  1855.  521 

The  People  v.  Ravenswood,  &c.  Turnpike  and  Bridge  Co. 

plaintiff  insisted  that  no  tolls  should  or  could  be  legally  collect- 
ed at  any  gate  of  the  defendants  on  the  said  road  in  either  of 
four  cases  specified  ;  in  which  cases  the  complaint  alleged  tho 
defendants  claimed  a  right  to  receive  the  same. 

Wherefore,  the  plaintiffs  demanded  that  by  the  judgment  of 
the  court  the  defendants  be  excluded  from  the  franchises  and 
privileges  aforesaid,  and  from  all  corporate  rights,  and  that  the 
said  corporation  be  dissolved  and  their  charter  vacated,  and 
that  the  plaintiffs  recover  against  the  defendants  the  costs  of 
this  action. 

The  defendants  demurred  to  the  complaint,  and  assigned  the 
following  causes  of  demurrer  :  1.  That  several  causes  of  action 
had  been  improperly  united  ;  2.  That  the  complaint  did  not 
state  fticts  sufficient  to  constitute  a  cause  of  action. 

The  demurrer  was  overruled  with  costs  ;  and  judgment  order- 
ed to  be  entered  for  the  plaintiffs,  pursuant  to  the  prayer  of 
the  complaint,  unless  the  defendants  paid  the  costs,  within  ten 
(la3-s,  and  answered  the  complaint. 

O^den  Hoffman,  attorney  general,  for  the  plaintiffs. 

C.  N.  Potter,  for  the  defendants. 

Mitchell,  J.  The  complaint  shows  that  the  defendants 
have  violated  their  charter,  and  also  that  they  omitted  to  do 
certain  things  which  might  be  essential  to  give  them  a  legal 
corporate  existence,  and  prays  that  they  may  be  excluded  from 
the  franchises  which  they  claim,  and  that  the  corporation  be 
dissolved.  The  defendants  object  that  several  causes  of  action 
are  improperly  joined  ;  insisting  that  one  cause  treats  the  cor- 
poration as  never  having  existed,  and  the  other  as  having  once 
existed  and  then  lost  its  right  to  a  continued  existence ;  and 
that  these  are  inconsistent  allegations,  and  the  judgments  to  be 
rendered  on  them,  incompatible.  This  mode  of  pleading  is  de- 
liberately sanctioned  in  The  People  v.  The  Saratoga  and 
Rensselaer  Rail  Rood  Company,  (15  Wend.  126.)  If  the 
former  system  did  not  allow  it,  the  present  does,  as  it  allows 

Vol.  XX.  66 


522  CASES  IN  THE  SUPREME  COURT. 


The  People  v.  Ravenswood,  &c.  Turnpike  and  Brid^je  Co. 

causes  of  action  arising  out  of  the  same  transaction  or  the  same 
subject  matter.  There  is  but  one  subject  matter  in  this  case — 
the  right  of  the  defendants  to  continue  to  exercise  certain  fran- 
chises. That  right  may  be  decided  against  them,  by  showing 
that  they  did  not  comply  with  conditions  precedent  to  the  origin 
of  that  right,  or  with  conditions  subsequent ;  and  in  either  case 
the  judgment  is  that  they  be  excluded  from  such  franchises. 
{Code,  §j  440,  443,  ^c.)  In  like  manner  if  a  lease  were  exe- 
cuted to  one,  with  a  condition  that  the  lessee  should  not  enter 
until  he  should  pay  a  certain  bonus,  and  to  be  void  on  non-pay- 
ment of  rent,  the  lessor — if  the  lessee  entered — might  show  that 
neither  the  bonus  nor  the  rent  was  paid,  and  claim  the  possession 
of  the  land.  There  would  be  but  one  subject  matter — the  right 
to  the  possession  of  the  land. 

The  code  recognizes  that  the  action  may  be  against  the  co7'- 
poratlon  for  either  kind  of  usurpation  of  franchises,  when  it 
provides  (§  441)  that  the  judgment,  whether  against  a  natural 
person  or  association,  if  they  are  found  guilty  of  usurping  a 
franchise,  shall  be  that  they  be  excluded  from  such  franchise. 

The  judgment  of  the  special  term,  against  the  defendants, 
should  be  affirmed  with  costs. 

CowLES,  J.  Scire  facias,  quo  warranto,  and  information  in 
the  nature  of  quo  warranto,  are  abolished,  and  the  remedies 
provided  in  part  2,  title  13,  chap.  2  of  the  code,  substituted  in 
their  place.  This  suit,  and  the  pleadings  under  it,  must  be 
construed  by  those  provisions.  It  is  brought  against  the  de- 
fendants as  a  corporation.  The  defendant  is  sued  by  and  in  its 
corporate  name.  The  object  is  to  vacate  its  charter,  as  provi- 
ded for  in  §  430  of  the  code.  It  is  brought  against  the  corpoia- 
tion  not  against  natural  persons  usurping,  or  assuming  without 
proper  authority  to  exercise  corporate  powers  or  rights.  By  the 
act  of  bringing  the  suit  the  plaintiffs  assume  that  the  defendants 
have  acquired  legal  corporate  existence  ;  for  if  it  did  not  exist 
as  a  corporation,  they  could  not  l)e  brought  into  court  as  such. 

The  distinction  between  actions  brought  to  vacate  a  charter 
or  to  annul  the  existence  of  a  corporation,  and  those  brought 


I 


NEW  YORK— SEPTEMBER,  1855.  523 

The  People  v.  Ravenswood,  &c.  Turnpike  and  Bridge  Co. 

against  individuals  acting  as  a  corporation  without  being  duly 
incorporated^  is  clear  and  broad.  {Code,  §§  430,  432.)  The 
one  lies  against  the  corporate  body  itself,  the  other  against  the 
persons  unlawfully  assuming  to  act  as  a  corporation.  The  one 
can  only  te  brought  on  leave  first  obtained  from  the  supreme 
court  or  a  judge  thereof.  (§§  430,  431.)  The  other  may  be 
brought  without  such  leave.  (§  432.)  The  judgment  in  the 
one  case  is  that  the  "  corporation  be  excluded  from  such  corpo- 
rate rights,  privileges  and  franchises,  and  that  the  corporation 
be  dissolved."  (§  442.)  In  the  other  case  the  judgment  is  that 
the  person  usurping  such  franchise  be  excluded  therefrom  :  and 
he  may  also  be  fined,  in  the  discretion  of  the  court.  (§  441.) 
In  case  of  judgment  against  the  corporation,  a  copy  of  the  judg- 
ment is  ta  be  filed  in  the  office  of  the  secretary  of  state.    (§  445.) 

This  distinction  under  the  code  had  been  previously  recog- 
ni2sed.  Formerly  judgment  of  ouster  was  rendered  when  a  lib- 
erty or  franchise  Avas  wrongfully  usurped,  and  that  supposed 
there  had  been  no  grant ;  but  if  the  liberty  or  franchise  had 
been  granted,  or  had  once  existed  and  was  forfeited  for  abuse  or 
misuser,  judgment  of  seizure  was  given.  Judgment  of  ouster 
would  operate  upon  individuals  ;  judgment  of  seizure  upon  a 
corporation.  {The  King  v.  The  City  of  London,  cited  in  2 
Term  Rep.  523,  and  commented  upon  in  The  People  v.  The 
Saratoga,  and  Rensselaer  Rail  Road  Co.,  15  Wend.  113.)  In 
the  last  case  the  court  say,  "  When  therefore  an  information  is 
filed  under  the  revised  statutes  against  a  corporation  by  its  cor- 
porate name,  the  existence  of  the  corporation  is  admitted — or 
rather  that  it  once  had  a  legal  existence."  And  under  the  pro- 
visions of  the  code  the  same  principle  is  evidently  applicable. 

This  suit  being  against  the  corporation  by  its  corporate  name, 
must  be  held  to  admit  that  the  defendant  has  once  acquired 
legal  and  actual  corporate  existence,  and  that  admission  arising 
from  the  fact  of  the  suit  being  brought  against  the  defendant  as 
a  corporate  body  treating  it  and  assuming  it  to  be  a  legal  entity, 
cannot,  as  it  seems  to  me,  be  overcome  by  any  averments  in  the 
complaint  that  it  had  not  acquired  existence.  Otherwise,  we  are 
presented  wuth  the  absurdity  of  assuming  to  bring  into  court  a 


524  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Ravenswood,  &c.  Turnpike  and  Bridoe  Co. 

fictitious  party,  whicli  neither  has  nor  ever  had  existence;  and 
that  too  in  face  of  the  fact,  ;is  shoAvn  by  the  record,  that  the  de- 
fendant sued  is  actually  present  in  court,  which  is  the  case  here; 
for  the  defendant  is  not  only  sued  by  this  corporate  name  as  an 
artificial  person  actually  in  existence,  but  appears  in  court  by 
that  name,  and  interposes  this  demurrer.  There  is,  therefore, 
such  a  legal  entity  as  this  defendant.  It  is  admitted  by  the 
plaintiff  by  the  very  act  of  suing,  and  is  conceded  by  the  de- 
fendant by  the  act  of  appearing  and  demurring ;  and  this  broad 
fact  cannot  be  overcome  by  the  plaintiff's  charging  in  his  com- 
plaint facts  which,  if  true,  Avould  go  to  showthat  the  defendant 
had  failed  to  comply  with  such  terms  as  by  the  charter  were 
conditions  precedent  to  its  organization  as  a  corporate  body. 

The  plaintiff  has  inserted  in  his  complaint  averments  of  that 
description,  and  which  are  only  proper  to  be  made  w-hen  the  suit 
is  against  individuals,  for  usurping  or  assuming  to  act  as  a  body 
corporate  when  in  fact  they  are  unincorporated. 

These  averments  are,  as  I  regard  them,  manifestly  irrelevant 
and  impertinent ;  for  the  plaintiff  cannot  be  permitted  to  treat 
the  defendant  as  a  corporation  in  fact  for  the  purpose  of  proving 
it,  and  then  assume  to  charge  that  it  never  performed  those  acts, 
without  performing  which  it  never  could  have  acquired  existence. 

But  the  complaint  also  charges  other  acts  of  neglect  or  omis- 
sions of  duty  which,  if  true,  would  forfeit  the  charter,  and  also 
avers  the  doing  of  acts  w'hich  could  only  be  performed  by  the 
defendant  as  an  actual  existing  corporation ;  thus  in  effect  aver- 
ring its  actual  existence. 

As  I  regard  the  case,  the  plaintiffs  admit  the  corporate  exist- 
ence of  the  defendant  by  the  jiiere  fact  of  suing  it  by  its  corpo- 
rate name,  and  consequently  must  be  held  to  have  admitted  the 
performance  by  it  of  all  such  acts  as  by  the  charter  were  condi- 
tions precedent  to  its  entering  upon  a  state  of  legal  existence. 
All  averments  to  the  contrary  must,  as  I  think,  be  regarded  as 
irrelevant,  and  on  motion  be  struck  from  the  complaint  or  disre- 
garded on  the  trial.  Such  facts  only  can  be  proved  at  nisi  prius 
in  this  case  as  go  to  show  that  by  misuser,  neglect  or  abuse,  the 
defendants  have  forfeited  their  charter. 


NEW  YORK— SEPTEMBER,  1855.  525 

The  People  v.  Ravenswood,  &c.  Turnpike  and  Bridge  Cc 

Had  all  of  the  allegations  "which  go  to  show  that  the  defeiidanta 
had  never  commenced  a  legal  corporate  existence  been  embraced 
in  one  count  or  statement  of  a  cause  of  action,  unaccompanied  by 
any  other  averments,  and  the  demurrer  had  been  interposed  to  that 
one  count  or  statement  of  the  cause  of  action,  I  should  have  no 
hesitation  whatever  in  holding  the  demurrer  well  taken,  since 
such  averments  alone  would  show  no  cause  of  action  against  the 
defendant.  But  the  complaint,  while  it  states  facts  which  are 
entirely  irrelevant  as  I  view  the  case,  also  avers  other  fjicts 
which  are  pertinent  and  proper,  and  which  if  true  show  that  the 
defendant  has  forfeited  its  charter.  The  demurrer  is  to  the 
whole  complaint,  and  the  complaint,  as  a  whole,  is  good,  while 
it  contains  much  which  is  irrelevant  and  ought  to  be  stricken 
from  the  record.     But  that  remedy  is  by  motion,  not  by  demurrer. 

For  these  reasons  I  concur  with  my  brother  Mitchell,  that 
the  judgment  of  the  special  term  should  be  affirmed.  But  with 
leave  to  the  defendants,  should  they  appeal  to  the  court  of  ap- 
peals, to  withdraw  their  demurrer,  and  answer  after  the  cause  is 
remitted  to  this  court,  on  payment  of  costs. 

Clerke,  J.  The  complaint  alleges  first,  in  substance,  that 
the  defendants  have  acted  as  a  corporation,  without  heing'legally 
incorporated  ;  and,  secondly,  sets  forth  several  acts  and  omis- 
sions, in  consequence  of  which  they  have  forfeited  their  corpo- 
rate rights,  privileges  and  franchises.  The  complaint  demands 
judgment,  first,  that  the  defendants  be  excluded  from  those 
franchises  and  privileges  and  all  corporate  rights  ;  and  secondly, 
that  the  corporation  be  dissolved  and  their  charter  vacated. 

These  are  inconsistent  causes  of  action  ;  because  they  require 
different  modes  of  proceeding,  and  the  nature  of  the  judgment 
appropriate  to  each  is  different.  The  language  employed  in 
The  King  v.  Amery,  (2  T.  R.  515,)  and  in  The  People  v. 
Saratoga  and  Rensselaer  Rail  Road  Co.,  (15  Wend.  113,)  is 
precisely  applicable  to  this  case.  If  the  object  of  this  action 
was  to  dispute  the  fact  of  the  incorporation,  it  should  have  been 
commenced  against  individuals  ;  if  to  effect  the  dissolution  of  a 
corporation  having  an  actual  existence,  then  it  is  correctly  in* 


526  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Ilavenswood,  &c.  Turnpike  and  Bridge  Co. 

stituted  against  the  corporation.  But  the  plaintiffs  seek  both 
objects,  which  are  not  only  inconsistent  with  each  other,  and 
Avhich  require  totally  distinct  and  inconsistent  judgments,  but 
in  order  to  accomplish  the  first  object,  the  individuals  unlawfully 
exercising  corporate  powers,  which,  it  is  alleged,  were  never 
conferred  on  them,  should  be  sued  by  their  respective  names. 
In  the  one  case,  judgment  of  ouster  would  be  rendered  ;  equiv- 
alent to  the  demand  in  this  complaint  that  "  the  defendants  be 
excluded,"  &c. ;  and  in  the  second  case,  the  proper  judgment 
would  be  that  of  seizure,  equivalent  to  the  other  part  of  the 
demand  in  this  complaint,  "  that  the  corporation  be  dissolved," 
(fee.  The  one  is  rendered  against  individuals  for  unlawfully 
assuming  to  be  a  corporation  ;  the  other  is  rendered  against  a 
corporation  for  a  forfeiture  of  its  corporate  privileges. 

The  two  cases  referred  to  by  the  counsel  for  the  plaintiffs 
have  no  applicability  to  these  questions.  That  of  The  People 
V.  The  Bank  of  Hudson,  (6  Cowen,  217,)  was  an  information 
against  an  incorporated  company,  seeking  a  dissolution  on  the 
ground  of  forfeiture  ;  it  was  not  pretended  that  it  had  not  been 
duly  incorporated  ;  but,  being  a  corporation,  it  had  forfeited  its 
charter,  and  therefore  the  language  quoted  by  the  counsel  had 
no  relevancy  in  the  connection  in  which  it  was  employed ;  and 
so  the  court  expressly  state,  that  the  judgment  must  be  against 
the  corporate  name,  being  a  judgment  of  seizure.  The  other 
case  referred  to,  (The  People  v.  The  Kingston  and  Middle- 
town  Turnpike  Road  Co.,  28  Wend.  193.)  is  of  the  same  de- 
scription ;  it  was  commenced  for  the  purpose  of  effecting  the 
dissolution  of  a  corporation,  which  it  was  admitted  had  had  an 
actual  existence  ;  ^but  which,  it  was  alleged,  was  forfeited  by  a 
non-compliance  with  the  requirements  of  the  act  of  incorpora 
tion,  in  neglecting  or  refusing  to  perform  the  duties  enjoined. 
It  Avas  not  pretended,  as  in  this  case,  that  the  defendants 
never  had  a  legal  existence,  that  "  without  legal  authority 
they  claimed  to  be  a  body  politic  and  corporate  in  law,  fact  and 
name." 

I  am,  however,  of  opinion  that  the  other  facts  stated  in  the 
complaint  constitute  sufiicient  ground  for  the  forfeiture  of  the 


NEW  YORK— SEPTEMBER,  1855.  527 

Roof  V.  Fountain. 

c-^rporate  privileges  to  entitle  the  plaintiffs  to  a  jucl^fmer.t  of 
dissolution  ;  but  the  first  cause  of  demurrer  is  well  taken. 

The  judgment  of  the  special  term  should  be  reversed,  with 
costs. 

Judgment  aflBrmed. 

New   York   General   Term,   September   3.   1855.     Mitchell,    Gierke  anil 
Cowles,  Justices.] 


Roof  vs.  Fountain,  executor  &c. 

A  testator,  by  bis  will,  devised  as  follows :  "  I  give  and  bequeath  unto  my  daugh- 
tei-  Mary  Roof  the  use  or  interest  of  $800,  for  and  during  her  natural  life ; 
and  at  lier  decease  I  give  and  bequeath  unto  my  granddaughter,  M.  A.,  $200 
of  the  said  $800."  The  testator  subsequently  directed  his  executors  to  divide 
among  his  children  and  grandchildren,  in  proportion  to  the  several  legacies 
be(iueathed  to  them,  '"'the  said  sum  of  $600  left  at  the  decease  of  his  daughter 
Mary,  and  all  the  residue  and  remainder  of  his  estate  not  otheiwise  disposed 
of"  After  the  testator's  death,  and  during  the  lifetime  of  Mary  Roof,  two  of 
the  legatees,  being  married  women,  with  their  husbands  quitclaimed  to  R.  R., 
husband  of  Mary  Roof,  and  to  his  heirs  and  assigns  forever,  "  all  the  right  and 
title  which  they  then  had  or  might  thereafter  have,  to  a  certain  legacy  be- 
(fueathed  to  his  wife  Mary  Roof"  by  the  testator.  Held  that  the  thing  released 
;  or  quitclaimed  was  only  the  legacy  bequeathed  to  Mary  Roof,  which  was  not 
the  $800  or  the  $600,  but  only  the  use  or  interest  of  $800  for  life ;  the  legacy 
bequeathed  to  her  being  only  a  life  estate  in  the  $800,  and  the  legacy  given  to 
the  other  legatees  being  the  reversion  in  that  sum.  That  such  reversion  did 
not  pass  by  the  quitclaim ;  and  that  consequently  the  executor  was  not  liable 
to  R.  R.  for  the  amount  of  the  shares  in  the  $600  which  he  had  paid  over  to 
the  assignors  or  releasors,  after  the  death  of  Mary  Roof     Ci.erke,  J.,  dissented. 

APPEAL  by  the  defendant,  from  a  judgment  entered  upon 
the  report  of  a  referee.  The  action  was  brought  against 
the  defendant,  as  executor  of  Ezra  Fountain  deceased,  to  recover 
the  share  or  interest  to  which  Alfred  Wood  and  Electa  his  wife, 
and  John  Woolsey  and  Elizabeth  his  wife,  were  entitled  after 
tlie  death  of  one  Mary  Roof,  wife  of  the  plaintiff,  under  and  by 
virtue  of  the  will  of  Ezra  Fountain  deceased,  in  the  sum  of  $600, 


528  CASES  IJ5  THE  SUPREME  COURT. 

Roof  V.  Fountain. 

part  of  the  sum  of  $800  of  which  said  Mary  Roof  had  the  use 
for  her  life  by  the  terms  of  said  will ;  it  being  alleged  that  the 
said  Woods  and  Woolseys  had  transferred  their  right  thereto  to 
the  plaintiff,  Rice  Roof,  who  had  given  notice  of  such  transfer 
to  the  defendant,  the  executor  of  Ezra  Fountain,  before  he  had 
paid  over  the  same  according  to  the  terms  of  the  Avill. 

On  the  trial,  before  the  referee,  the  plaintiff  offered  and  reacj 
in  evidence  the  following  instrument;  the  execution  and  delivery 
of  which  were  admitted  :  "  Know  all  men  by  these  presents,  that 
we,  iVlfred  Wood  and  Electa  his  wife,  of  the  town  of  Bedford,  coun- 
ty of  Westchester,  and  state  of  New  York,  have  quitclaimed^  and 
by  these  presents  do  quitclaim  unto  Rice  Roof,  of  the  city  of  New 
York,  and  to  his  heirs  and  assigns  forever,  all  our  right  and  title 
which  we  now  have  or  may  hereafter  have  to  a  certain  legacy  be- 
queathed to  his  wife  Mary  Roof,  by  our  father  and  father-in-law, 
Ezra  Fountain.  In  witness,"  &c.  A  similar  instrument,  exe- 
cuted by  JohnWoolsey  and  his  wife,  was  also  read  in  evidence. 
The  plaintiff's  counsel  then  produced  and  read  in  evidence  the 
last  will  and  testament  of  the  testator,  Ezra  Fountain  ,  the 
contents  of  which  are  sufficiently  set  forth  in  the  opinions  which 
follow.  The  referee  reported,  as  matters  of  law,  that  Mrs,  Wood 
and  Mrs.  Woolsey  intended  to  convey,  and  did  conve}'',  by  the 
instruments  so  executed  by  them,  their  respective  shares  of  the 
said  $800  to  the  plaintiff,  and  that  the  latter  was  entitled  to 
judgment  for  the  sum  of  ^353.62,  and  costs 

A.  L.  McDonald^  for  the  plaintiff. 

Ferris  ^*  Frost,  for  the  defendant. 

CowLES,  J.  By  the  will  set  forth  in  the  proof  it  appears 
that  the  testator,  Ezra  Fountain,  bequeathed  unto  his  daughter 
"  Mary  Roof  the  use  or  interest  of  $800  for  and  during  her  nat- 
ural life  ;"  and  by  the  same  will  $200  of  the  $800,  upon  the  de- 
cease of  the  said  Mary  Roof,  was  given  to  the  testator's  grand- 
daughter, Matilda  Adams.  The  will  then  provides  that  the 
sum  of  $600  left  at  the  decease  of  Mary  Roof  (being  that  same 


NEW  YORK— SEPTEMBEPw,  1855.  529 

Roof  V.  Fountain. 

sum  of  $800  above  mentioned  less  the  $200  given  to  Matilda 
Adams)  and  all  the  residue  and  remainder  of  his  estate  not  oth- 
erwise disposed  of,  he  divided  among  his  children  and  grand- 
children, in  proportion  to  the  several  legacies  bequeathed  to 
each  of  them  by  his  will. 

During  the  lifetime  of  Mary  Roof  and  after  the  testator's 
death,  the  plaintiff,  who  was  the  husband  of  Mary  Roof,  took 
from  Alfred  Wood  and  Electa  his  wife  and  from  John  Woolsey 
and  Elizabeth  his  wife,  two  several  instruments  by  which  they 
did  "  quitclaim  unto  Rice  Roof  of  the  eity  of  New  York,  and  to 
his  heirs  and  assigns  forever,  all  our  [the  assignors']  right  and 
title  which  we  now  have  or  may  hereafter  have  to  a  certain 
legacy  bequeathed  to  his  [plaintiff's]  wife  Mary  Roof,  by  our 
father  and  father-in-law,  Ezra  Fountain." 

The  only  legacy  which  Mary  Roof  took  under  the  will  was 
the  "  use  or  interest"  for  life  of  the  $800.  The  above  named 
Electa  Wood  and  Elizabeth  Woolsey  who  joined  in  the  instru- 
ments above  alluded  to,  to  the  plaintiff,  it  is  admitted,  were 
two  of  the  parties  who  were  by  the  terms  of  the  will  to  share 
in  the  distribution  of  the  "  residue  and  remainder"  of  the  tes- 
tator's estate,  including  the  above  sum  of  $600.  The  plaintiff 
claims  that  by  the  two  conveyances  or  quitclaims  to  him  he 
took  the  shares  in  the  $600  which  upon  the  death  of  Mary 
Roof,  Electa  Wood  and  Elizabeth  Woolsey  were  to  receive.  And 
he  now  claims  to  recover  from  the  defendant,  who,  as  executor 
of  Ezra  Fountain,  has  paid  over  those  shares  to  Mrs.  Wood 
and  Mrs.  Woolsey.  The  diflSculty  in  the  case  is,  that  the  plain- 
tiff only  bought  from  Mrs.  Wood  and  Mrs.  Woolsey  and  their 
respective  husbands  the  "  legacy  bequeathed  to  his  (plaintiff's) 
wife,  Mary  Roof"  by  the  will  of  Ezra  Fountain  ;  and  all  that 
Mary  Roof  took  under  that  will,  was  the  "  use  or  interest"  for 
life  of  the  $800.  Neither  the  $800,  nor  any  portion  of  that 
principal  sum,  was  a  legacy  to  Mary  Roof,  and  could  not  there- 
fore have  been  sold  by  Mrs.  Wood  and  Mrs.  Woolsey  to  the 
plaintiff.  Even  if  the  parties  in  fact  intended  to  convey  the 
contingent  interest  which  they  had  in  the  $600.  after  Mary 
Roof's  death,  "they  have  failed  to  so  express  it  in  the  release  or 

A^OL.  XX.  67 


530  CASES  IN  THE  SUPREME  COURT. 

Roof  V.  Fountain. 

"quitclaim"  to  the  plaintiff.  The  case  stands  on  the  mere  legal 
effect  of  the  quitclaim  ;  for  even  had  it  been  allowable  to  ex- 
plain by  parol,  or  dehors  those  quitclaims,  that  the  word  legacy 
as  therein  used,  was  intended  to  have  a  broader  or  more  extend- 
ed construction  than  is  implied  by  the  quitclaims  on  their  face, 
yet  no  such  proof  was  offered  or  given.  We  have,  therefore, 
only  to  ascertain  the  fair  legal  construction  to  be  given  to  the  in- 
struments under  which  tlie  plaintiff  claims ;  and  upon  that 
question  there  can  be  no  doubt.  The  plaintiff  took  just  such 
interest  as  his  grantors  had  in  the  legacy  left  by  the  will  to 
Mary  Roof.  What  Mary  Roof  took  under  the  will  was  the  use 
or  interest  of  $800  during  her  natural  life — and  whatever  in- 
terest the  plaintiff's  grantors  had  in  that  "  use  or  interest"  of 
the  $800  for  the  life  of  Mary  Roof,  was  by  these  quitclaims  con- 
veyed to  the  plaintiff,  and  nothing  more.  He  consequently  had  no 
interest  in  the  $800,  or  any  part  of  it,  after  the  death  of  Mary 
Roof,  and  the  defendant  cannot  be  made  responsible  for  hav- 
ing distributed  the  $600  as  provided  for  in  the  will.  The  ref- 
eree's report  must  be  set  aside  and  a  new  trial  granted,  costs  to 
abide  the  event. 

Mitchell,  P.  J.  The  will  is  in  this  form  :  "I  give  and  be- 
queath unto  my  daughter,  Mary  Roof,  the  use  or  interest  of 
$800,  for  and  during  her  natural  life ;  and  at  her  decease  I 
give  and  bequeath  unto  my  granddaughter,  Matilda  Adams, 
$200  of  the  said  $800."  Afterwards  the  testator  directs  his 
executors  to  divide  among  his  children  and  grandchildren,  in 
proportion  to  the  several  legacies  bequeathed  to  them,  "  the 
said  sum  of  $600  left  at  the  decease  of  his  daughter  Mary,  and 
all  the  residue  and  remainder  of  his  estate  not  otherwise  dia 
posed  of." 

Two  of  the  legatees,  being  married  women,  with  their  hus- 
bands quitchiimed  to  Rice  Roof,  husband  of  Mary  Roof,  and 
to  his  heirs  and  assigns  forever,  •'  all  the  right  and  title  which 
they  then  had  or  might  thereafter  have  to  a  certain  legacy  be 
queathed  to  his  wife  Mary  Roof"  by  the  testator.  The  plain 
tiff,  Rice  Roof,  contends  that  the  executor  is  bound  to  pay  the 


KEW  YORK -SEPTEMBER,  1855.  53] 

Roof  V.  Four.tain. 

principal  of  the  $600  to  him.  The  executor  and  the  assignees 
contend  that  the  quitclaim  merely  released  to  Rice  Roof  any 
possible  claim  they  might  have  to  the  income  of  the  $800.  It 
is  very  probable,  from  some  circumstances,  that  this  was  the 
intention.  But  whatever  the  intention  was,  it  is  expressed  in 
so  uncertain  a  way  that  it  is  not  remarkable  that  there  should 
be  a  contrariety  of  opinion  about  it.  There  is  no  consideration 
for  the  release,  expressed  in  it,  and  none  proved.  Could  it 
then  operate  any  further  than  as  a  confirmation  of  what  was 
already  bequeathed  to  the  wife  of  the  releasee,  but  which  might 
possibly  be  disputed  by  the  releasors?  Where  an  instrument  is 
without  consideration,  this  seems  to  accord  best  with  the  prob- 
able intention  of  the  releasor.  In  such  case,  too,  there  is  no 
reason  for  extending  the  description  of  the  thing  released,  be- 
yond its  literal  meaning,  or  to  give  it  a  liberal  interpretation. 
The  thing  released  is  only  the  legacy  bequeathed  to  Mary 
Roof  That  legacy  was  not  the  $800  or  the  $600,  but,  in  the 
words  of  the  will,  only  "  the  use  or  interest  of  $800  for  and 
during  her  natural  life."  So  that  when  the  legacy  to  her  was 
released,  it  was  a  -release  only  of  the  use  or  interest  in  the 
$800.  The  legacy  bequeathed  to  Mary  Roof  was  only  a  life 
estate  in  the  $800,  and  the  legacy  bequeathed  to  the  assignors 
Avas  the  reversion  in  that  sum.  The  first,  the  assignors  pro- 
fessed to  release,  but  not  any  thing  bequeathed  to  them. 

I  concur  Avith  my  brother  Cowles  that  the  referee's  report 
must  be  set  aside,  and  a  new  trial  granted  ;  costs  to  abide  the 
event. 

Clerke,  J.  If  the  assignors  intended  to  release  any  thing 
but  the  proportionate  parts  of  the  legacy,  to  which  they  would 
be  entitled  aft^.r  the  death  of  Mary  Roof,  they  were  performing 
an  idle  ceremony.  They  had  nothing  else  to  release  :  they  had 
no  claim  to  the  life  interest  bequeathed  to  her,  but  a  future 
right  to  a  portion  of  the  money  of  which  Mary  Roof  was  to  have 
the  use  during  her  life.  This  was  the  legacy  (the  principal,)  re- 
ferred to  in  the  assignment ;  and   which,   according  to  the   fair 


532  CASES  IN  THE  SUPREME  COURT.' 

King  V.  Lowry. 

interpretation  of  the  language,  taken  in  connection  with  the 
condition  and  circumstances  of  the  parties,  they  intended  to 
convey.     I  do  not  concur. 

Report  set  aside,  and  new  trial  granted. 

[New   York   General   Term,  September  3,  1855.     Mitchell,    Gierke  ami 
Cowlss,  Justices.] 


King  &,  Davidson  vs.   Lowry  &  Jarvis,  impleaded  with 

Brown. 

In  an  action  against  several  persons,  as  joint  owners  of  a  vessel,  for  supplies  fur- 
nished for  the  vessel,  pj'oof  hy  the  plaintiffs  that  the  supplies  were  delivered 
on  board  the  vessel,  that  they  rendered  a  bill  thereof  to  B.  one  of  the  joint 
owners,  that  it  was  last  seen  in  his  possession  and  that  it  had  been  inspect- 
ed by  the  other  joint  owners,  is  sufficient,  after  proving  service  of  the  usual 
notice  on  B.  to  produce  the  bill,  and  his  failure  to  do  so,  to  authorize  parol 
evidence  to  be  given  of  its  contents. 

Joint  owners  of  a  vessel  are  primarily  liable,  at  all  events  for  supplies  furnished 
in  the  port  to  which  she  belongs,  whether  all  the  ownqrs  are  in  such  place  or 
not.  Prima  facie  their  liability  is  identical  with  that  of  persons  in  tlic  rela- 
tion of  copartners,  as  joint  contractors. 

But  if  any  one  of  the  owners  arrogates  to  himself  the  control,  to  the  exclusion, 
and  against  the  wishes,  of  the  others,  and  this  assumption  is  known  to  the 
persons  furnishing  the  supplies,  thus  showing  that  they  act  in  collusion  with 
the  usurping  owner,  it  see'ms  the  others  are  not  liable. 

The  mere  acceptance  by  the  creditors,  of  a  note,  from  one  of  the  owners,  is  no 
proof,  in  itself,  that  the  credit  was  given  exclusively  to  him.  Nor  will  it  re- 
lease the  other  owners,  in  the  absence  of  proof  that  the  note  was  taken  as 
payment,  and  with  the  intent  to  discharge  the  other  owners. 

In  an  action  against  L.,  J.  &  B.  as  joint  owners  of  a  vessel,  for  supplies  furnish- 
ed for  the  vessel,  at  the  request  of  B.,  proof  by  L.  and  J.  that  B.  at  the  time 
the  debt  was  contracted,  not  only  acted  in  hostility  to  them  and  their  interests, 
but  took  exclusive  possession  and  control  of  the  vessel,  undertaking  a  voyage 
in  expre.ss  contravention  of  the  wishes  of  the  other  owners,  and  that  the  plain- 
tiffs knew  this,  is  admissible. 

But  the  mere  hostility  of  B.  to  the  other  owners,  in  relation  to  the  vessel  and 
their  interests  in  it,  is  not  relevant,  unless  it  also  appears  that  he  usurped 
exclusive  control  over  the  vessel,  and  undertook  a  voyage  with  her  in  direct 
opposition  to  them,  and  that  the  plaintiffs  were  aware  of  that  fact,  and  acted 
collusivcly  with  him. 


NEW  YORK— SEPTEMBER,  1855.  533 

King  V.  Lowry. 

Where  a  I'efendaiit  has  no  separate  defense,  in  an  action  on  a  joint  contract,  a 
co-defendant,  called  as  a  witness,  can  prove  nothing  that  will  not  enure  to  his 
own  benefit,  as  well  as  the  benefit  of  his  co-defendant ;  and  as  to  such  niatters 
he  is  therefore  interested,  and  of  course  incompetent. 

APPEAL  by  the  defendants  Lowry  and  Jarvis  from  a  judg- 
ment entered  upon  the  report  of  a  referee.  The  referee 
found  and  reported  the  following  facts  :  that  at  the  time  alleged 
in  the  complaint,  each  of  the  defendants  in  this  cause  was  a 
part  owner  of  the  steamship  Pacific,  which  was  then  being  fit- 
ted out  for  a  voyage  to  California ;  that  at  the  request  of  the 
defendant  Brown,  the  plaiptiflfs  sold  to  the  owners  of  said  ship, 
and  delivered  on  board  of  the  same  as  supplies  or  ship  stores, 
for  the  use  of  said  ship  on  her  said  voyage,  the  articles  men- 
tioned in  the  complaint,  of  the  value  of  five  hundred  and 
twenty-six  dollars  and  fifty-five  cents,  which  sum.  together  with 
interest  thereon  to  the  date  of  the  report,  amounted  to  the  sum 
of  six  hundred  and  twenty-eight  dollars  and  eighty-three  cents, 
the  whole  of  which  sum  remained  due  and  unpaid  to  the  plain- 
tiff's. For  which  sum,  together  with  costs,  the  referee  reported 
in  favor  of  the  plaintiffs  ;  and  judgment  was  entered  for  that 
amount,  and  the  defendants  appealed. 

./.  .Graham,  for  the  appellants.  I.  The  referee  erred  in  ad- 
mitting parol  proof  of  the  contents  of  the  bill.  In  order  to 
entitle  the  plaintiffs  to  affect  the  defendants  Lowry  and  Jarvis, 
by  the  rendition  of  a  bill  to  Brown,  a  state  of  facts  should  have 
been  established  warranting  the  legal  inference  that  the  pos- 
session of  one  was  the  possession  of  all ;  showing  that  they 
were  joint  owners  of  the  same  vessel  was  not  enough.  {Abbott 
on  Shipping,  107.) 

II.  The  evidence  as  to  the  duplicate  receipts  was  improperly 
received  by  the  referee.  Brown  was  not  shown  to  be  the  agent 
or  attorney  of  Lowry  and  Jarvis  ;  no  joint  connection  was  es- 
tablished between  them,  beyond  the  owning  of  separate  interests 
in  the  same  vessel.  Jarvis  may  have  seen  these  receipts.  It 
is  not  shown  that  Lowry  saw  them.  The  whole  thing  was  treat- 
ed as  the  individual  matter  of  Brown,  for   it  was  amalgamated 


534  CASES  IN  THE  SUPREME  COl  RT. 

King  V.  Lowry. 

with  matters  in  which  Lowry  and  Jarvis  confessedly  had  no 
interest,  and  his  note  was  given  and  taken  in  settlemei.t  of  all 
of  them. 

III.  The  referee  erred  in  refusing  to  dismiss  the  complaint, 
for  the  reasons  urged  on  the  hearing,  viz.  (1.)  The  defendants 
being  joint  owners  of  the  steamship  Pacific,  were  not  liable  as 
partners,  but  if  liable  at  all,  were  liable  as  tenants  in  common, 
and  the  acts  or  declarations  of  any  one  could  not  bind  all  unless 
previously  authorized,  or  subsequently  sanctioned  by  all  of 
them.  (2.)  There  was  not  evidence  on  the  part  of  the  plaintiffs, 
sufficient  to  show  that  the  defendants  Lowry  and  Jarvis  knew 
of,  authorized,  or  sanctioned  the  acts,  declarations,  or  conduct 
of  the  defendant  Brown,  in  relation  to  the  contracting  of  the  bill 
sought  to  be  recovered  by  the  plaintiffs.  (3.)  There  was  not 
competent  or  sufficient  evidence  to  show  that  the  articles  al- 
leged to  have  been  furnished  to  the  steamship  in  question  by 
the  plaintiffs,  and  for  which  they  sought  to  recover,  were  neces- 
sary, or  needed,  or  intended  for  the  voyage  she  was  to  perform. 
(4.)  Upon  the  pleadings  and  the  testimony  it  is  apparent  that 
the  credit  was  originally  given  by  the  plaintiffs  to  the  defend- 
ant Brown  alone,  and  that  he  alone  can  be  considered  their 
debtor.  (5.)  Under  the  facts  presented,  in  any  aspect  of  the 
case,  the  defendants  Jarvis  and  Lowry  are  not  liable  to  the 
plaintiffs.  (6.)  In  law  the  defendants  Lowry  and  t  arvis  were 
not  liable  to  the  plaintiffs. 

IV.  The  referee  erred  in  excluding  the  questions  to  the  wit- 
ness for  the  defendants,  Lowry  and  Jarvis.  The  object  of 
these  questions  was  to  show  that  in  point  of  fact,  BroAvn  was 
not  the  agent  of,  or  entitled  to  represent  L6wry  and  Jarvis, 
and  that  he  did  not  act  as  such  or  do  so  ;  on  the  contrary, 
that  he  acted  in  direct  hostility  to  them.  The  plaintiffs'  whole 
case  had  proceeded  and  been  sustained  upon  the  ground  that 
there  was  a  kind  of  partnership  between  all  the  defendants ; 
even  if  the  facts  jtrima  facie  would  have  warranted  such 
a  conclusion  as  matter  of  law,  the  defendants  Lowry  and 
Jarvis  were  entitled  to  combat  it.  and  could  do  so  in  no  othei 


NEW  YORK.— SEPTEMBER,  1855.  /)35 

King  V.  Lowry, 

way   more    effectually    than    by   showing   what    they   offered. 
(3  Kent's  Com.  155.) 

V.  The  referee  erred  in  refusing  to  allow  the  defendant  Lowry 
to  be  examined  for  the  defendant  Jarvis,  and  so  vice  versa. 
At  the  most  there  was  no  joint  liability  on  their  part  for  the  whole 
of  the  plaintiffs'  claim,  even  though  they  might  have  been 
liable  for  a  part  proportioned  to  their  interests  separately. 
Code,  §  394.) 

VI.  Unless  Brown  was  shown  to  be  the  ship's  husband,  or 
in  some  way  the  recognized  agent  of  Lowry  and  Jarvis,  the 
action  could  not  be  sustained  against  the  latter  upon  what 
Brown  said  or  did  ;  nothing  like  this  was  shown.  The  opposite 
of  it  was  distintly  proved.  Lowry  and  Jarvis  ordered  things 
for  the  vessel,  which  were  paid  for  by  them.  Unless  the  action 
can  be  sustained  upon  the  idea  that  for  its  purposes,  the 
several  distinct  owners  of  a  vessel  are  liable  for  the  acts  of  any 
one  of  them,  the  judgment  below  is  entirely  without  any  legal 
foundation.  Although  one  of  several  joint  owners  may  have 
an  implied  authority  from  the  absent  part  owners  to  order  for 
the  common  concern  whatever  is  necessary  for  the  preservation 
and  proper  employment  of  the  ship,  the  rule  does  not  apply 
when  the  owners  are  all  present,  as  in  this  case.  (3  KenVs 
Com.  155.)  Joint  ownership  is  the  general  relation  between 
ship-owners.  Partnership  is  the  exception,  and  requires  to  be 
specially  shown.     (3  Kenfs  Com.  155.) 

H.  H.  Stuart,  for  the  respondents.  L  The  report  of  the 
referee,  as  to  facts  found  by  him,,  is  like  a  verdict  by  a  jury. 
To  warrant  the  court  in  setting  it  aside  there  must  be  such  a 
preponderance  of  evidence  as  to  satisfy  the  court  that  there 
was  either  an  absolute  mistake  on  the  part  of  the  referee,  or  that 
he  acted  under  the  influence  of  prejudice,  passion  or  corruption. 
{Eaton  V.  Benton,  2  Hill,  576.  Esterly  v.  Cole,  1  Barb. 
S.  C.  R.  235.  Quackenbush  v.  Ehle,  5  id.  469.  Spencer  v. 
U.  ,$'  S.  R.  R.  Co.,  5  id.  337.) 

II.  The  evidence  fully  sustains  the  facts  as  reported  found. 
(1.)  It  is  charged  in  the  complaint,  and  not  denied  in  the  an- 


536  CASES  IN  THE  SUPREME  COURT. 

King  V.  Lowry. 

Bwer,  that  the  defendants  were  joint  owners  of  the  vessel,  and 
this  ownership  is  admitted  on  the  trial  by  the  defendants' attor- 
ney, Mr.  Jarvis.  (2.)  It  is  proved  by  Jennings,  that  the  plain- 
tiffs, at  Brown's  request,  sold  to  the  OAvners  of  the  vessel,  and 
delivered  on  board  the  vessel,  the  articles  mentioned  in  the 
complaint.  The  same  is  also  proved  by  Arthur  J,  Brown.  The 
only  other  witness  sworn  was  Mr.  Jarvis,  and  he  does  not  at- 
tempt to  contradict  the  evidence  of  Jennings  and  Brown. 
(3.)  These  artiples  are  proved  to  have  been  necessary  stores  for 
the  vessel  on  her  voyage.  (4.)  The  plaintiffs  show  that  they 
have  not  been  paid^  and  produce  the  note  taken  on  liquidation 
of  the  account. 

III.  A  part  owner  of  a  vessel  has  power  to  bind  his  co- 
owners,  for  necessaries  furnished  to  the  vessel.  (^Abbott  on 
Shippings  6th  Am.  ed.  130.  Schermerhorn  v.  Loines,  7  Joh?K 
311.  Muldon  V.  Whitlock,  1  Cowen,  290.  3  Kent's  Com. 
156.  Collyer  on  Partnership^  Sd  Am.  ed.  §§  1255,  1256.) 
(1.)  The  fact  that  the  seller  knows  of  no  owner  except  the  one 
ordering  the  things  furnished  to  the  vessel,  does  not  affect  his 
right  to  resort  to  the  other  owners  when  discovered.  (1  Cowen. 
290.  cited  above.)  (2.)  Taking  the  promissory  note  of  the  par- 
ticular owner  who  makes  the  purchase,  and  giving  a  receipt  in 
full,  does  not  preclude  a  resort  to  the  other  owners,  in  case  the 
note  is  not  paid,  unless  it  is  expressly  agreed  to  take  such  note 
in  discharge  of  the  other  owners.  (7  John.  311.  Coll.  on 
Part.  1255,1256,  cited  above.) 

IV.  The  bill  rendered  by  the  plaintiff  shows  that  the  credit 
originally  was  not  given  to  Brown,  but  to  the  otmiers  of  the 
vessel.  This  bill  is  shown  to  have  been  received  by  all  tht 
defendants.  LoAvry  or  Jarvis  do  not  show  that  they  have  as 
sumed,  in  their  dealings  with  Brown,  that  he  bought  and  paid 
for  these  stores  individually,  and  have  settled  their  accounts 
with  him  on  that  basis  ;  nor  do  they  show  any  reason  why  the 
other  owners  of  this  vessel  should  not  pay  the  plaintiff  in  case 
Brown  failed  to  pay. 

Y.  There  is  no  evidence  that  Brown  has  paid  the  claim.  The 
reply  denies  the  allegation  in  the  answer.     It  avers  that  tne 


NEW  YORK— SEPTEMBEE,  1855.  537 

King  V.  Lowry. 

whole  claim  for  which  Brown's  note  was  taken  remains  unpaiil 
and  oflfers  to  produce  the  note  in  court.  The  note  is  produced 
on  the  trial,  and  nothing  appears  to  have  been  paid  on  it.  If,  in 
fact,  any  such  payment  had  been  made,  the  defendants  would  have 
attempted  to  prove  it,  even  by  calling  the  plaintiflFs  as  witnesses. 

VI.  The  offer  to  prove  Brown's  declaration  was  properly  ex- 
cluded. (1.)  It  was  an  offer  by  the  defendants  to  prove  their 
own  declarations,  made  when  the  plaintiffs  were  not  present. 
(2.)  Disputes  occurring  between  part  owners  of  a  vessel  as  to 
their  individual  rights,  do  not  affect  third  persons  not  cognizant 
of  such  disputes,  who  furnish  necessaries  to  the  vessel. 

VII.  The  offer  of  the  defendants  to  become  witnesses  for 
each  other  was  properly  excluded.  They  were  sued  as  joint 
contractors,  and  were  jointly  interested,  and  jointly  liable. 
The  code  gives  them  no  right  in  such  cases  to  testify  for  each 
other.  {Code,  sec.  397.  Beal  v.  Finch,  1  Kernan,  128. 
4  Comst.  547.) 

By  the  Court,  Clerke,  J.  This  Avas  an  action  against  the 
defendants,  as  joint  OAvners  of  a  vessel,  for  supplies  furnished  for 
a  voyage  from  New  York  to  San  Francisco.  Judgment  was  re- 
covered by  default  against  Brown ;  the  other  defendants  con- 
tending that  the  credit  was  exclusively  given  to  him.  while  he 
had  the  control  of  the  vessel ;  that  the  supplies  were  not  neces- 
sary, and  were  furnished  not  only  without  their  concurrence, 
but  in  direct  opposition  to  their  wishes,  and  while  Brown  was 
acting  in  open  hostility  to  Lowry  &  Jarvis,  in  relation  to  the 
management  of  the  vessel. 

The  plaintiffs  offered  in  evidence  parol  evidence  of  the  con- 
tents of  a  bill  of  the  articles  furnished,  which  had  been  rendered 
about  the  time  of  their  delivery  to  Brown;  having  proved  the 
usual  preliminary  notice  to  entitle  them  to  the  benefit  of  secon- 
dary evidence.  This  was  objected  to  by  the  counsel  of  Lowry 
60  Jarvis,  on  the  ground  "  that  a  state  of  facts  should  have  been 
first  established  warranting  the  legal  inference  that  the  possession 
of  one  was  the  possession  of  all ;  showing  that  they  were  joint 
owners  of  the  same  vessel  was  not  enough."     But  if  the  joint 

Vol.  XX.  68 


538  CASES  IN  THE  SUPREME  COURT. 

King  V.  Lowiy. 

owners  are  jointly  liable,  and  if  the  proof  was  introduced  for 
the  purpose  of  showing  that  the  credit  was  given  to  the  ship,  it 
was  sufficient  to  show  the  delivery  of  the  bill  to  any  one  of  the 
defendants,  and  its  possession  by  him.  It  surely  was  not  requi- 
site to  deliver  it  to  all ;  and  the  mere  circumstance  that  Brown 
was  at  variance  with  the  other  defendants,  although  it  affected 
the  relations  between  themselves,  should  not  operate  to  the 
prejudice  of  the  plaintiffs,  unless  it  was  shown  that  they  acted 
in  collusion  with  him,  or  that  they  gave  him  credit  exclusively, 
expressly  discharging  the  others.  But  this  evidence  was  offered 
for  the  express  purpose  of  proving  the  contrary  to  this,  that  the 
credit  was  given  to  the  vessel,  and  not  individually  to  Brown. 
It  may,  indeed,  be  the  interest  of  the  latter  to  withhold  the  bill, 
and  endeavor  to  throw  the  payment  of  a  portion  of  this  demand 
on  Lowry  &  Jarvis ;  but  this  is  their  misfortune,  a  mishap  to 
which  all  persons  engaging  in  business  with  others  are  often 
liable,  but  with  which  third  parties  have  nothing  to  do.  The 
plaintiffs  proved  that  the  supplies  were  delivered  on  board  the 
Pacific,  that  they  rendered  a  bill  to  Brown,  that  it  was  last  seen 
in  his  possession,  and  that  it  had  been  inspected  by  the  other 
defendants.  Having  proved  that  the  usual  notice  was  served  on 
Brown  to  produce  the  bill,  and  Brown  failing  to  produce  it,  I 
think  it  was  proper  to  allow  the  plaintiffs  to  give  parol  evidence 
of  its  contents.  The  same  remark  will  apply  to  the  evidence 
relative  to  the  duplicate  receipts. 

The  referee  having  found  the  facts,  that  the  defendants  were 
joint  owners,  that  the  supplies  were  necessaries  furnished  to 
the  Pacific,  and  that  the  credit  was  not  given  exclusively  to 
Brown,  in  discharge  of  the  others,  the  only  questions  remaining 
for  us  to  consider  are, 

1,  Can  the  acts  and  declarations  of  one  joint  owner,  in  relation 
to  supplies  furnished  bind  the  others,  unless  expressly  author- 
ized or  sanctioned  by  them? 

2.  Did  the  referee  err  in  not  allowing  Lowry  &.  Jarvis  to 
show  that  during  the  months  of  February  and  March,  1851, 
Brown  acted  in  hostility  to  them,  in  relation  to  the  vessel  and 
their  interests  in  it  ? 


NEW  YORK— SEPTEMBER,  1855.  539 

King  V.  Lowry. 

3.  Did  lie  err  in  excluding  the  testimony  of  the  defendant 
Jarvis  ? 

In  relation  to  the  first  question,  it  is  well  settled  that  joint 
owners  of  a  vessel  are  primarily  liable,  at  all  events  for  supplies 
furnished  in  the  port  to  which  she  belongs,  whether  the  OAvners 
are  in  such  place  or  not ;  that  prima  facie  their  liability  is 
identical  with  that  of  persons  in  the  relation  of  copartners,  as 
joint  contractors ;  but  if  any  one  of  the  owners  arrogates  the 
control,  to  the  exclusion  and  against  the  wishes  of  the  others, 
and  not  merely  a9  husband  of  the  vessel,  and  this  assumption  is 
known  to  the  persons  furnishing  the  supplies,  thus  showing  that 
they  act  in  collusion  with  the  usurping  owner,  then  I  should  say 
the  otherg  are  not  liable. 

In  this  case,  there  is  no  proof  of  any  exclusive  control  on  the 
part  of  Brown,  or  any  such  collusiveness  on  the  part  of  the 
plaintiff's.  The  mere  acceptance  on  their  part  of  a  note  is  no 
proof,  in  itself,  that  the  credit  was  given  exclusively  to  Brown, 
or  that  it  releases  the  other  defendants,  in  the  absence  of  proof 
that  the  note  was  taken  as  payment,  and  with  the  intent  to  dis- 
charge the  other  owners.  IScherTnerhorn  v.  Loines,  (7  John. 
311;)  Muldon  v.  Whitlock,  (1  Cowen,  290,)  and  Higgins  v. 
Packard,  (2  Hall,  547,)  are  conclusive  on  this  point,  and  have 
never  been  questioned. 

2.  Did  the  referee  err  in  not  allowing  Lowry  &.  Jarvis  to 
show  that  during  the  months  of  February  and  March,  1851, 
Brown  acted  in  hostility  to  them,  in  relation  to  the  vessel  an  1 
their  interests  in  it? 

The  mere  hostility  of  Brown  to  the  others,  in  relation  to  /ho 
vessel  and  their  interest  in  it,  could  not  be  relevant,  unless  toej' 
also  showed  that  he  usurped  exclusive  control  over  the  vessel 
and  undertook  a  voyage  with  her  in  direct  opposition  to  them, 
and  that  the  plaintiffs  were  aware  of  this,  and  acted  collusivcly 
with  him.  Nothing  of  this  kind  was  attempted.  On  the  con- 
trary, the  very  witness  by  whom  they  offered  to  show  the  hos- 
tility of  Brown,  testified  that  Lowry  &  Jarvis  ordered  other  ship 
stores,  from  other  parties,  for  that  voyage,  showing  that  this 
voyage  was  with  their  knowledge  and  consent.     If  indeed  ihey 


540  CASES  IN  THE  SUPREME  COURT. 

King  V.  Lowry. 

offered  to  show  that  Brown  not  only  acted  in  hostility  towards 
them,  but  took  exclusive  possession  and  control  of  the  vessel, 
undertaking  a  voyage  in  express  contravention  of  the  wishes  of 
the  other  owners,  and  that  the  plaintiffs  knew  this,  such  testi- 
mony, in  my  opinion,  would  have  been  admissible. 

3.  Did  the  referee  err  in  not  allowing  the  defendant  Jarvis  !o 
be  examined  as  a  witness  for  the  defendant  Lowry  ? 

The  offer  Avas  made  without  qualification,  except  that  the  tes- 
timony of  Jarvis  should  not  be  used  for  himself.  This  is  not 
enough ;  he  could  only  be  examined  as  to  any  matter  in  which 
he  was  not  jointly  interested  or  liable  with  the  other  defendant. 
He  could  have  shown,  for  instance  that  Lowry  was  not  a  joint 
owner  at  all,  and  if  the  offer  was  limited  to  this,  Jarvis  ought 
to  have  been  examined ;  but  not  if  the  object  was  to  negative 
the  liability  of  the  owners  of  the  vessel,  whoever  they  were,  or  to 
reduce  the  amount  of  the  claim  ;  or  to  show  that  the  credit  was 
given  exclusively  to  Brown  ;  for  in  all  such  questions  he  was 
jointly  interested  with  LoAvry,  and  in  relation  to  them  a  separate 
judgment  could  not  be  rendered.  Where  a  defendant  has  no  sep- 
arate defense  in  an  action  on  a  joint  contract,  a  co-defendant 
called  as  a  witness  could  prove  nothing  that  would  not  enure  to 
his  own  benefit,  as  well  as  to  the  benefit  of  his  co-defendant ;  and 
as  to  such  matters  he  is,  therefore,  interested,  and  of  course  in- 
competent. {Beal  V.  Finch,  1  Kernan,  132,  Judge  Parker^s 
opinion.)  Jarvis  &  Lowry,  if  liable  at  all,  are  liable  as  joint 
contractors  with  Brown. 

On  the  whole  I  see  nothing  to  warrant  us  in  disturbing  the 
finding  of  the  referee. 

Judsrment  affirmed,  with  costs. 

;Nkw  York  General  Term,  September  3,  1855.  Milchell,  Cleike  and 
*~owles,  Justices.] 


NEW  YOIiK— SEPTEMBER.  1855.  /)4 


Creighton  and  wife  vs.  Josiah  Ingersoll. 

In  an  action  for  a  partition,  after  the  plaintiff's  attorney  had  become  entitled  to 
certain  fees  for  his  services,  and  to  over  $100  for  disbursements,  the  plaintiffs 
assigned  their  shares  in  the  property  to  C.  and  wife,  and  one  of  the  plaintiffs 
assigned  also  all  costs  akd  allowances  that  he  might  have,  by  the  suit.  Thy 
assignees  claimed  the  right  to  substitute  a  new  attorney,  and  continue  the  suit, 
without  paying  the  former  attorney  any  thing.  The  court  refused  to  allow  the 
substitution  until  the  disbursements  were  paid.  Subsequently,  the  property 
being  sold,  and  the  plaintiff's  costs  brought  into  court,  it  was  held  that  tlie 
assignment  did  not  transfer  any  costs  or  allowances  to  which  the  attorney  was 
entitled,  but  only  those  belonging  to  the  assignor. 

It  was  further  held  that  when  C.  and  wife  took  an  assignment  of  the  action  as 
it  stood,  and  the  benefit  of  the  progress  then  made  in  it,  they  took  it  with  the 
burthens  then  incident  to  it,  one  of  which  was  the  liability  to  have  the  costs 
then  incurred  deducted  from  the  recovery  by  them.  The  amount  of  costs  due 
to  the  former  attorney,  as  adjusted  previous  to  the  substitution,  was  therefore 
directed  to  be  paid  to  him,  before  paying  over  the  fund  in  court  to  the  plaintiffs. 

APPEAL  from  an  order  made  at  a  special  term,  directing  the 
payment  to  the  plaintiif,  John  Creighton  or  his  attorney,  of 
the  sum  of  $259.01,  for  the  costs  and  disbursements  of  the 
present  and  former  plaintiffs,  out  of  a  fund  in  court  arising  from 
the  sale  of  property  in  a  partition  suit. 

James  L.  Phelps,  jun.  for  the  appellant. 

Wm.  B.  Aitkin,  for  the  respondents. 

By  the  Court,  Mitchell,  P.  J.  This  action  was  first  com- 
menced by  W.  F.  Ingersoll  and  wife,  for  the  partition  of  certain 
premises.  After  their  attorney  had  become  entitled  to  certain 
fees  for  his  services,  amounting  according  to  the  present  system, 
if  the  adjustable  costs  are  the  standard  of  his  pay.  to  between 
$70  and  $80,  and  had  disbursed  over  $100  in  the  action,  the 
then  plaintiffs  assigned  their  shares  of  the  property  to  the  pres- 
ent plaintiffs,  and  the  latter  insisted  they  had  the  right  to  sub- 
stitute a  new  attorney  and  take  advantage  of  all  that  had  been 
dune,  without  paying  the  former  attorney  any  thing.  This 
cDurt,  at  general  term,  refused  to  allow  the  substitution  until  all 
the  disbursements   were  paid.     Since  then    the   property  has 


542  CASES  IN  THE  SUPREME  COURT. 

Creighton  v.  Ingersoll. 

been  sold,  and  by  the  judgment  all  the  costs  of  the  plaintiffs 
were  to  be  deducted  from  the  fund  before  the  shares  should  be 
distributed  to  the  owners.  The  shares  have  been  distributed, 
and  the  costs  brought  into  court,  in  order  that  the  court  might 
determine  who  was  entitled  to  them.  The  present  plaintiffs 
produce  an  assignment  to  themselves  of  the  share  of  the  former 
plaintiff,  dated  December,  1851,  but  not  proved  until  January 
10,  1854,  and  by  it  W.  F.  Ingersoll,  one  of  the  former  plaintiffs, 
assigns,  besides  his  share-  in  the  lands,  also  all  costs  and  allow- 
ances that  he  might  have  by  this  suit. 

If  the  assignment  could  affect  the  rights  of  the  attorney,  it 
should  be  shown  that  it  was  executed  before  the  attorney  had 
acquired  any  better  rights.  But  it  does  not  purport  to  transfer 
all  the  costs  in  the  suit,  but  only  the  costs  and  allowances  that 
Ingersoll  himself  might  have — not  any  which  his  attorney 
might  have.  It  would  be  supposing  both  the  assignor  and  as- 
signees were  intending  a  fraud,  to  suppose  that  they  meant  to 
assign  costs  to  which  the  attorney  was  entitled.  It  could  have 
been  the  assignor's  only  fair  intention  to  assign  what  he  was 
fairly  entitled  to,  beyond  what  belonged  to  his  attorney  ;  and 
that  might  be  for  some  allowance  that  might  be  made  to  him, 
rather  than  to  his  attorney.  The  attorney  was  entitled  to  some 
compensation  for  his  services.  Under  the  old  system  the  fee 
bill  would  be  the  standard  of  his  compensation,  so  fir  as  it  pro- 
vided for  specific  services.  Under  the  code  the'  party  and  his 
attorney  are  not  restricted  to  that  rule  of  compensation,  but  may 
show  any  other,  agreed  upon  between  them.  It  may  be  more  or 
less  than  the  adjustable  costs,  and  whichever  it  be,  the  attorney 
is  entitled  to  some  compensation ;  and  nothing  in  the  code  pro- 
fesses to  repeal  the  system  un(>er  which  the  lawyer  had  a  lien  on 
the  costs  for  his  payment.  The  fund  is  in  court,  and  the  court 
can  and  ought  to  hold  it  for  the  benefit  -of  the  one  equitably  en- 
titled to  it.  And  as  no  one  can  have  a  more  equitable  title  than 
the  one  by  whose  exertions  the  whole  fund  was  created,  the 
court  should  see  that  he  is  paid  before  any  one  else  carries  away 
the  fund.  That  the  attorney  was  not  to  have  less  than  his  adjust- 
able costs  appears  from  his  having  recovered  a  judgment  against 


KEW  YORK— SEPTEMBER,   1855.  543 

Grady  v.  Ward. 

his  client  for  five  hundred  dollars,  for  his  services.  But  that 
remains  unpaid. 

The  assignees,  when  they  bought,  must  have  known  that  the 
attorney  would  have  a  claim  for  those  costs.  And  when  they 
took  an  assignment  of  the  action  as  it  stood,  and  the  benefit  of 
the  progress  then  made  in  it,  they  took  it  with  the  burthens  then 
incident  to  it,  and  one  of  these  should  be  the  liability  to  have 
the  costs  then  incurred  deducted  from  the  recovery  by  them, 
when  judgment  should  be  obtained. 

Lei  the  sum  of  $79,  the  costs  as  adjusted  before  the  substi- 
tution, be  paid  to  James  L.  Phelps,  Esq.  the  former  attorney, 
and  the  rest  of  the  fund  in  court  to  the  plaintifis.  And  let  the 
order  of  the  special  term  be  modified  accordingly. 

[Nkw  York  General  Term,  September  3,  1855.  Mitchell,  Roosevelt  and 
Morris,  Justices.] 


Grady  vs.  Ward. 


Where  the  title  to  property  purchased  at  a  foreclosure  sale  was  objected  to,  on  the       /  flg,  ^ 
ground  that  the  order  of  court  authorizing  the  execution  of  the   mortgage 
was  void  as  against  devisees,  it  was  held  that  the  title  would  be  rendered  good 
by  the  execution  of  a  release  by  the  devisees. 

And  the  devisees  being  of  age  and  consenting  to  release  their  interests,  and  the 
"  release  having  been  ready  lefore  the  hearing ;  it  was  further  held  that  the 
purchaf-er  was  not  excused  from  talking  the  title. 

If  the  title  of  a  mortgagor  is  good  by  adverse  possession,  that  is  such  a  title  as 
a  purchaser  at  a  foreclosui  3  sale  is  bound  to  take. 

THIS  was  an  appeal  by  Edward  Cavanagh,  the  purchaser  at 
a  foreclosure  sale,  from  an  order  made  at  a  special  term,  di- 
recting him  to  complete  his  purchase.  The  mortgage  fore- 
closed was  executed,  on  the  19th  of  April,  1844,  by  John 
Power,  sole  surviving  executor  of  Michael  Smith  deceased,  in 
pursuance  of  an  order  made  by  the  vice  chancellor  of  the  first 
circuit,  on  the  18th  of  April,  1844,  upon  the  petition  of  said 
John  Power.     It  was  given  to  secure  the  payment  of  $1700  to 


544  CASES  IN  THE  SUPREME  COUIiT. 


Grady  v.  Ward. 


the  plaintiff.     The  otlier  facts  are  set  fofth  in  the  opinion  below^ 
delivered  at  special  term,  by. 

Roosevelt,  J.  "A  motion  is  made  in  this  complaint  to 
compel  the  bidder  at  a  foreclosure  sale  to  complete  his  purchase. 
He  objects  on  the  alleged  ground  of  insufficiency  of  title. 
Michael  Smith,  through  -whom  it  appears  the  title  is  derived, 
died  many  years  ago,  but  after  the  revised  statutes  of  1830, 
leaving  a  will  in  Avhich  he  left  the  property  in  question  to  three 
trustees  of  whom  Dr.  Power  was  the  survivor,  in  trust  to  pay 
the  net  rents  to  .his  daughter,  (Mrs.  Ward,)  and  on  her  death 
to  divide  the  property  equally  among  her  issue,  each  to  receive 
his  or  her  share  at  twenty-one,  or  marriage,  and  the  rents  in 
the  meanwhile  to  be  applied  to  his  or  her  support.  Mrs.  Ward 
died  after  her  father,  leaving  two  infant  children,  named  Ann 
and  William.  Ann  came  of  age  five  or  six  years  ago,  and  was 
then  of  course  entitled  to  a  conveyance  of  the  one  undivided 
half  of  the  premises.  Under  the  statute,  however,  no  formal 
conveyance  was  necessary.  The  trust  ceased  as  to  her  half, 
and  with  it  the  trustee's  title,  (§  68  of  the  statute  of  trusts;) 
and  by  the  47th  and  49th  sections,  the  estate  of  the  trustee  was 
divested,  and  the  beneficiary  became  immediately  seised  of  the 
*'  legal  estate,"  as  well  as  entitled  to  the  "  beneficial  interest." 
William's  half,  however,  he  beiag  a  minor  still,  remained  in 
trust  until  November,  1854,  when  his  minority  terminated,  and 
his  legal  estate  commenced.  From  that  period  the  two  grand- 
children of  Smith,  whether  regarded  as  his  sole  heirs  at  law.  or 
his  sole  beneficiaries  by  will,  were  the  only  persons  having  any 
interest,  legal  or  equitable,  in  the  property.  Their  release, 
therefore,  assuming  Smith's  title  to  have  been  good,  would  cure 
all  defects,  if  any,  in  the  antecedent  proceedings ;  and  such  a 
release,  it  appears,  has  been  actually  executed  and  tendered. 
Uut  independently  of  the  release,  the  statute  in  relation  to 
mortgages,  declares,  that  a  chancery  deed  on  a  foreclosure  shall 
be  "  an  entire  bar  against  each  of  them  (the  mortgagors  and 
mortgagees)  and  against  all  parties  to  the  suit."  Now,  the 
grandchildren  were  both  parties  to  the  suit  in  which   the  de- 


>TEW  YORK— SEPTEMBER,  185o.  54^ 

Grady  v.  Ward. 

crec  of  sale  w.i3  made ;  and  it  is  not  pretended  that  there  were 
any  other  p?.rties  in  interest  claiming  under  Smith.  Whether 
the  mortgage  then  executed  by  Power,  as  surviving  trustee  and 
executor,  was  duly  authorized  or  not,  and  whether  the  order  of  the 
vice  chancellor  which  alloAved  it  to  be  given  was  valid  or  not,  is 
immaterial.  After  the  decree  of  foreclosure,  the  adult  defend-' 
ant  was  "  barred"  from  raising  the  question  ;  and  after  a  sale' 
in  good  fiith,  under  the  decree,  (especially  a  sale  beneficial  to 
his  interests,)  the  infant  was  equally  barred. 

But  the  trustee,  it  is  said,  was  not  a  party  to  the  foreclos- 
ure suit,  and  he  thei-efore  could  not  be  barred  by  the  decree. 
He  was  not  a  party,  because,  being  dead,  he  could  not  be.  But 
the  court,  it  is  urged,  the  trust  having  by  law  devolved  upon 
it,  should  have  appointed  a  substitute.  The  court  in  eifect 
did  so ;  it  directed  a  sale  and  appointed  a  referee  to  con- 
duct it,  and  a  guardian  ad  litem  to  take  care  of  the  infant's 
rights.  And  even  if  any  formal  irregularities  had  taken  place, 
and  the  minority  still  continued,  the  court,  acting  for  the  infant, 
and  having  in  its  character  of  guardian  and  trustee  full  power, 
would  now  remedy  all  such  defects.  But  they  are  remedied  al- 
ready, and  remedied  effectually  by  majority  and  release. 

Passing  over  all  the  niceties,  a  more  fundamental  objec- 
tion— one  on  which  the  counsel  for  the  purchaser  lays  the 
greatest  stress — presents  itself  in  the  alleged  want  of  title  in 
Smith,  or  Smith's  successor.  Smith,  it  appears,  purchased  the 
property — then  vacant  ground — of  William  Bayard  more  than 
thirty  years  ago,  and  immediately  entered  into  possession,  and 
erected  permanent  buildings  upon  it.  Bayard,  it  is  clear,  claim 
ed  to  be  and  acted  as  owner  ;  and  from  the  evidence,  although 
not  entirely  complete  for  the  whole  period,  it  is  obvious  that 
the  property  had  been  assessed  to  him  as  owner,  and  that  he 
paid  the  taxes  on  it,  as  oAvner.  for  fourteen  years  previous,  show- 
ing an  undisturbed  possession  for  nearly  half  a  century,  during 
which,  one  set  of  parties  did  no  act  and  made  no  claim,  while 
the  other,  uncontradicted  and  undisturbed,  did  both.  In  such 
cases,  the  law  is  well  settled  that  a  deed,  with  its  execution 
and  loss,  may  and  ought  to  be  presumed.     Even  where  a  trust 

Vol.  XX.  69 


546  CASES  IN  THE  SUPPwEME  COURT. 


Grady  v.  Ward. 


existed,  the  court  in  Jackson  v.  Brooks,  (8  Wend.  426,")  pre- 
sumed a  conveyance  after  tAventy-eight  years.  In  Jackson 
V  Miller,  (6  Wend.  228,)  a  partition,  -which  is  only  a  partic- 
ular mode  of  conveyance,  was  presumed.  In  Jackson  v.  McCall, 
(10  John.  377,)  a  conveyance  was  presumed  after  the  death  of 
a  party,  and  subsequent  possession  by  his  heirs  for  eighteen 
years.  Such  presumptions  are  indispensable  to  the  quiet  of 
titles  and  the  peace  of  families.  Absolute  certainty  is  seldom 
attainable  in  human  affairs  ;  in  titles  to  land,  almost  never.  If 
thirty  years'  undisturbed  possession  under  an  absolute  deed^ 
and  that  preceded  by  fifteen  more  in  the  maker  of  that  deed, 
with  no  claim  or  suspicion  of  claim  elsewhere,  be  not  sufficient 
to  constitute  a  merchantable  title,  it  would  be  difficult  to  find 
one,  short  of  a  patent  from  the  state.  And  were  the  price  in 
the  present  case  as  good  as  the  title,  the  purchaser,  I  am  in- 
clined to  think,  would  have  viewed  the  matter  in  the  same 
light.  Besides,  the  purchaser  has  actually  taken  and  retains 
possession.  He  has  no  right  to  say  he  holds  as  lessee,  for  his 
lease  had  expired,  and  unless  in  as  purchaser,  he  would  be  in 
as  trespasser — a  position  which  no  man  is  allowed  by  law  to  as- 
iiume.  He  is  therefore  in  the  precise  condition  which  renders 
a  release  appropriate,  and  makes  it  incumbent  on  him  to  ac- 
cept that  species  of  assurance.  Having  no  doubt  of  the  suffi- 
ciency of  the  title,  I  cannot  do  otherwise  than  grant  the 
^plaintiff's  motion." 

Jas.   W.  White,  for  the  purchaser. 
\R.  B.  Roosevelt,  for  the  plaintiff. 

By  the  Courts  Mitchell,  P.  J.  The  purchaser  in  this 
•case,  objects  that  the  title  is  not  good.  It  may  be  that  the 
order  of  the  vice  chancellor,  authorizing  the  execution  of  the 
mortgsige  which  was  foreclosed,  was  void  as  against  the  devisees 
under  the  will,  and  yet  the  title  would  be  good  if  those  de- 
visees would  release.  They  are  of  age  and  consent  to  a  re- 
lease ;  and  as  there  has  been  no  unreasonable  delay  in  proving 
the  release,  and  it  was  ready  before  the  hearing  at  the  special 


NEW  YORK— SEPTEMBER,  1855.  547 


Van  Neste  v.  Conover. 


term  the  purchaser  is  not  excused  from  takfng  the  title. 
[Dnlch  Chnrch  in  Garden  street  v.  Mott,  1  Paige,  85.)  The 
title  of  the  mortgagor  is  good  by  adverse  possession.  That  is 
such  a  title  as  a  purchaser  is  bound  to  take,  even  on  a  judicial 
sale. 

Order  of  the  special  term  affirmed,  with  costs. 

[Nkw  York  Gkneral  Term,  September  3,  1855.     Mitchell,  Roosevelt  and 
Morris,  Justices.] 


Van  Neste  vs.  Conover. 


iu  an  action  to  recover  the  possession  of  a  quantity  of  com,  jjurchased  by  the 
defendant  for  cash,  and  delivered  to  liim  on  the  promise  of  immediate  pay- 
ment, it  appeared  that  the  defendant  assured  the  vendor's  agent  that  the  money 
to  pay  for  the  corn  was  arranged  for,  and  tliat  the  vendor  could  have  it  as 
soon  as  the  corn  was  delivered  on  board  a  ship;  and  upon  that  condition  the 
corn  was  delivered  to  the  defendant,  who,  on  various  pretexts  avoided  the 
payment  of  the  money,  for  several  days,  and  the  vessel  sailed  for  Europe,  with 
the  corn  on  board  ;  the  defendant  on  the  same  day  she  sailed,  executing  a  gen- 
eral assignment  of  his  property  to  trustees  for  the  benefit  of  his  creditors,  he  be- 
ing insolvent  at  that  time  and  at  the  time  of  the  purchase,  and  having  obtain- 
ed advances  upon  the  bills  of  lading,  and  applied  them  to  other  purposes.  II 
was  held  that  both  on  the  ground  of  fraud,  and  of  a  conditional  sale  and  de- 
livery, the  plaintiff  was  entitled  to  recover;  and  a  verdict  in  favor  of  the  de- 
fendant was  set  aside,  as  being  against  the  weight  of  evidence,  and  a  new  trial 
was  granted. 

Such  an  action  will  lie,  although  the  goods  have  been  transferred  to  another,  as 
security  for  a  debt,  and  are  on  board  ships  and  not  under  the  manual  control 
of  the  purchaser  when  the  action  is  brought.  The  jud^ient  being  in  the 
alternative,  for  the  return  of  the  projjcrty  or  the  payment  of  its  value,  the 
defendant,  if  he  has  not  the  property,  can  satisfy  the  other  requirement  of  the 
judgment,  and  pay  the  value. 

APPEAL  by  the  defendant  from  an  order  made  at  a  special 
term,  granting  a  new  trial.  The  action  was  brought  to  re- 
cover of  the  defendant  the  possession  of  6261  bushels  and  14 
pounds  of  corn,  of  the  value  of  $3443.69,  and  the  damages  and 
expenses  incurred  by  the  wrongful  detention  thereof.     The  jury 


54S  CASES  i:?^  THE  SUPREME  COURT. 


Van  Neste  v.  Conover. 


found  «i  verdict  for  the  defendant.     The  following  opinion  was 
delivered  at  the  special  term  : 

Roosevelt,  J.  "  This  suit  is  brought  to  enforce  the  resti- 
tution of  a  large  quantity  of  corn,  six  thousand  bushels  and 
upwards,  purchased  by  the  defendant  for  cash,  but  never  paid 
for.  It  appears  that,  although  giving  assurances  of  payment 
on  delivery,  and  representing  that  he  had  made  arrangements 
for  that  purpose,  he  was  at  the  time  utterly  insolvent,  and  if 
the  purposes  of  his  mind  are  to  be  judged  of  by  his  act.°, 
had  no  intention  of  paying  at  all. 

The  suggestion  that  the  bad  news  received  by  him  from 
Europe  on  the  6th  of  April,  was  the  cause  of  his  stoppage,  is 
refuted  by  dates.  How  could  letters,  the  contents  of  which 
were  unknown  till  the  6th,  have  influenced  the  non-payment  on 
the  2d,  3d,  4th  and  5th  ?  It  is  not  usual  for  effects  to  precede 
their  causes.  He  admits,  as  I  read  his  answer,  that  he  was  to 
pay  on  delivery ;  but  allowing,  as  he  noAv  contends,  that  by 
cash  was  meant  payment  in  two  or  three  days,  even  in  that 
view,  the  delivery  having  been  completed  on  the  2d,  he  had 
fiiiled  before  the  6th.  Nothing  had  occurred,  or  is  pretended  to 
have  occurred,  between  the  time  of  purchase  and  the  time  of 
payment,  to  create. or  to  warrant  a  change  of  intention.  The 
inference,  therefore,  is  irresistible,  that  in  the  very  act  of 
bujdng  he  deliberately  purposed  not  to  pay.  It  has  been  held, 
and  very  justly,  that  such  a  purpose,  entertained  at  the  time, 
and  carried  into  effect,  is  a  fraud  on  the  vendor,  and  vitiates 
the  contract  olsale.     (1  Hill,  311.     13  Wend.  507.) 

The  defendant's  counsel  contends,  that,  to  avoid  a  sale  on 
the  ground  of  fraud,  or  false  pretenses,  there  must  be  misre- 
presentation, not  of  a  promissory  character,  having  reference 
to  the  future,  but  an  existing  fact  ;  and  that  assuming  that  his 
client,  when  negotiating  the  purchase,  did  say  that  he  had 
"  made  arrangements  to  pay  the  money  as  soon  as  the  corn 
should  be  weighed  on  ship-board,"  the  statement  in  that  partic- 
ular, as  a  matter  of  fact,  was  true.  But  when  a  party  not  only 
promises  to  do  a  thing  which  he  is  able  to  do,  but  accompanies 


NEW  YORK— SEPTEMBER,  1855.  549 


Van  Neste  v.  Couover. 


his  promise  with  an  assurance  that  he  intends  to  do  it,  when  in 
truth  he  intends  the  very  opposite,  is  not  this  a  false  represen- 
tation of  an  existing  fact  ?  Are  there  no  facts  except  those 
existing  in  the  physi<3al  worhl  ?  Are  mind,  and  the  creations  of 
mind,  nothing?  There  is  high  authority  for  the  doctrine  that 
words  are  things  ;  and  if  words,  why  not  the  mental  concep- 
tions, of  which  words  are  the  mere  clothing  ?  Intention,  like 
other  hidden  works  of  the  intellect,  may  sometimes  be  difficult 
of  proof;  yet  it  is  none  the  less  a  fact,  an  existing  fact;  and 
the  law,  in  spite  of  all  its  diflficulties.  has  made  the  judicial  de- 
termination, not  of  questions  of  property  merely,  but  of  liberty, 
and  even  of  life,  to  depend  upon  this  kind  of  fact.  Intention, 
not  iinfrequently,  is  the  only  distinction  between  a  breach  of 
trust  and  larceny  ;  and,  in  the  trial  of  life  and  death,  it  consti- 
tutes the  broad  boundary  between  murder  and  manslaughter. 
Its  existence  or  non-existence,  therefore,  in  contemplation  of 
law,  can  be  proved  like  any  other  fact. 

In  the  present  case,  as  already  stated,  I  consider  the  fact  of 
the  intention  not  to  pay,  as  abundantly  established.  The  de- 
fendant made  the  purchase  on  the  afternoon  of  the  29th  of 
March,  being  utterly  insolvent  at  that  time.  He  made  immediate 
arrangements  with  third  parties  to  obtain  advances  on  the  corn. 
On  the  1st  of  April,  before  the  whole  quantity  had  been  fully 
delivered  on  board  the  ship,  and  while  the  lighters  were  still 
alongside,  he  hurried  to  the  ship-owners  and  procured  the  bills 
of  lading.  These  he  forthwith  transferred  to  the  parties  mak- 
ing the  advances,  who  on  the  2(1  forwarded  them  by  the  steamer 
to  Liverpool.  Having  thus  put  himself  in  funds,  by  creating  a 
lien  on  the  property  purchased,  what  did  he  do  with  those 
funds?  On  the  afternoon  of  Tuesday,  the  2d  of  April,  the 
measurer's  return  was  sent  to  him,  but  the  clerk  "  brought  back 
no  money."  "  I  saw  the  defendant  (says  the  witness)  the  next 
day ;  I  think  twice ;  I  asked  him  for  payment ;  I  wanted  the  mon- 
ey :  he  put  me  off,  saying  it  was  steamer  day ;  I  saw  him  again ; 
lie  told  me  that  his  parties,  whom  he  was  to  have  the  money 
from,  (he  had  the  money  in  his  pocket.)  were  so  much  engaged 
that  they  had  not  time  to  give  him  the  money,  but  I  might  rely 


.550  OASES  IN  THE  SUPREME  COURT. 

Van  Neste  v.  Conover. 

on  it  early  next  morning ;  the  next  morning  between  9  and  10 
o'clock,  I  sent  another  clerk  ;  he  '.vent  and  returned  and  said 
Conover  was  not  in  ;  I  started  immediately  myself ;  again  he  was 
not  in  ;  he  did  not  come ;  I  made  an  arrangement  to  meet  him 
on  'Change  ;  he  did  not  come  till  late,  near  3  o'clock;  I  imme- 
diately asked  him  for  the  money  ;  he  said  (with  the  money,  be 
it  remembered,  in  hi&  pocket)  he  was  ashamed  to  say  that  his 
party  had  disappointed  him,  but  that  I  might  rely  upon  it  be 
fore  10  o'clock  next  morning  ;  I  went  again  next  morning  to 
his  office  ;  he  then  told  me  his  father-in-law  was  dead,  but  his 
book-keeper  would  bring  me  the  money  during  the  day  ;  this  was 
on  Friday,  the  5th  ;  I  saw  the  book-keeper  on  'Change  where  he 
was  to  bring  the  money  ;  I  did  not  get  it ;  I  went  to  defendant's 
place  of  business  again  next  morning  ;  did  not  see  him,  but  the 
book-keeper  said  he  would  not  or  could  not  do  any  thing  about 
it."  This  was  on  Saturday.  On  the  Monday  folfowing,  the 
ship,  with  the  corn  on  board,  being  two  days  behind  her  time, 
sailed  for  Liverpool,  and  the  defendant,  at  the  same  time,  exe- 
cuted an  assignment  of  all  his  estate,  real  and  personal,  of 
what  nature  or  kind  soever,  for  the  benefit  of  his  friends  and  rela- 
tives and  other  preferred  creditors.  With  such  a  narrative  of  pre- 
tenses and  prevarications,  can  there  be  a  reasonable  doubt  that 
Avhen  he  purchased,  he  had  no  intention  to  pay?  Hay  no  stress 
on  the  letters  received  by  him  on  the  6th,  as  it  is  palpable  that 
they  had  no  influence  on  his  previous  conduct  on  the  1st,  2d, 
3ii  4th  and  5th. 

In  addition  to  the  ground  of  fraud,  the  plaintiff  insists,  (and 
I  see  no  incompatibility  in  his  doing  so,)  that  the  sale  made  by 
him  was  conditional ;  that  no  title  to  the  corn  was  to  pass  un- 
less paid  for  in  cash  on  delivery,  and  that  this  condition — deem- 
ed essential  to  the  contract,  it  being  addmitted  by  tli.e  defendant 
himself  that  the  purchase  was  not  on  credit — was  not  waived 
by  merely  putting  the  corn  on  board  the  ship. 

The  proof,  it  seems  to  me,  makes  out  this  branch  also  of  the 
plaintiff's  case.  Indeed,  the  defendant,  in  his  answer,  which  more- 
over is  under  oath,  uses  language  sufficiently  strong,  to  dispense 
with  other  testimony.     "  As  the  sale  (he  says)   was  for  cash, 


I 


NEW  YORK— SEPTEMBER,  1855.  55] 

Van  Neste  v.  Conover. 

this  defendant  probably  did  say,  that  lie  would  pay  for  the 
corn  on  its  delivery,  he  at  the  same  time  fully  expecting  to  be 
able  and  intending  to  make  such  payment."  Was  this  condition 
waived  by  a  delivery  without  immediate  payment,  or  by  any 
other  act  or  declaration  of  the  plaintiff?  An  article  like  corn, 
requiring  to  be  measured  or  weighed  out,  it  is  obvious,  could  not 
be  delivered  all  at  once.  The  passing  of  each  successive  bush- 
el into  the  hold  of  the  vessel  could  not  constitute  a  delivery  of 
the  whole  or  even  of  that  particular  bushel.  Although  sold 
for  cash,  no  payment  was  demandable  until  possession  had  been 
given  of  the  entire  quantity  sold.  If  mere  change  of  posses- 
sion, then,  in  such  a  case,  does  not  make  out  an  absolute  deliv- 
ery, we  must  inquire  what  further  was  necessary. 

Long  acquiescence  has  sometimes  been  considered  sufficient. 
But  here,  instead  of  acquiescing,  the  seller,  as  soon  as  the 
measurer's  returns  were  ready,  demanded  his  pay  ;  or  in  other 
words,  insisted  on  the  fulfilment  of  the  condition  of  cash  on  de- 
livery. He  continued  his  demands  daily,  and  was  daily  evaded, 
until  the  ship  and  the  corn  had  passed  beyond  his  reach — all  in 
less  than  one  week.  In  all  this  I  see  no  evidence  of  waiver, 
but  the  reverse.  And  had  the  corn  remained  in  the  defend- 
ant's hands,  and  not  been  pledged  to  a  bona  fide  lender,  the 
verdict  of  the  jury,  I  doubt  not,  would  have  restored  it  to  the 
plaintiff.  Can^  then,  the  wrongful  hypothecation,  superadded 
to  the  fraudulent  purchase  and  broken  condition,  improve  the 
wrongdoer's  case? 

It  is  said  that  an  action  to  recover  the  possession  of  specific 
personal  property,  against  a  party  not  having  the  control  of  it, 
involves  an  absurdity.  If  so,  the  old  common  law,  so  long  con- 
sidered '  the  perfection  of  reason,'  was  guilty  of  folly  ;  for  cer- 
tainly replevin  could  formerly  have  been  maintained  in  such  a 
case,  as  is  sufficiently  demonstrated  by  the  antique  writ  of 
capias  in  withernam.  But  independently  of  authority,  I  see 
no  absurdity  in  the  nature  of  the  proceeding.  Suppose  a  judg- 
ment, in  this  very  case,  to  be  recovered  against  the  defendant, 
for  the  specific  corn  described  in  the  complaint,  where  is  the 
difficulty  in  executing  it  ?     The  defendant    has    only  to    dis- 


552  CASES  IN  THE  SUPREME  COURT. 

Van  Neste  v.  Conover. 

charge  the  lien  created  by  himself,  and  reclaim  the  possession 
from  the  party  who  made  the  advances — or  purchase  a  like 
quantity  of  the  article  of  the  same  quality — or  provide  himself 
with  a  sum  of  money  equivalent  in  value,  and  the  difficulty 
would  disappear.  At  all  events,  he  cannot  be  permitted  to  set 
up  inconveniences,  if  any  exist,  created  by  his  own  wrong,  as 
a  defense  to  an  action,  otherwise  clearly  maintainable. 

With  respect  to  the  assignment  of  the  8th  of  April,  it  did 
not  profess  to  pass  any  property  of  which  the  assignor  Avas  not 
the  just  and  lawful  owner ;  and  if  it  had,  its  only  consideration 
being  the  security  or  payment  of  the  antecedent  debt,  the  as- 
signees would  acquire  no  title  under  it,  as  against  the  equitable 
claims  of  third  parties.  The  consignees  who  made  the  previous 
bona  fide  advances,  I  have  considered  as  standing  upon  a  differ- 
ent footing  ;  although,  according  to  the  doctrine  laid  down  by 
the  supreme  court,  in  the  case  of  Andrews  v.  Dieter ich, 
(14  Wend.  31,)  even  they  would  seem  to  have  no  rights  suffi- 
cient to  defeat  the  title  of  the  original  owner.  But  not  being 
parties  to  this  suit,  it  is  unnecessary,  and  would  perhaps  be  im- 
proper, to  express  a  decided  opinion  with  respect  to  their  claims. 

As  the  verdict,  in  my  view  of  the  whole  case  as  above  stated, 
appears  to  be  clearly  against  right,  I  have  concluded  that  it 
ought  to  be  set  aside  and  a  new  trial  had,  leaving  the  question 
of  costs  to  abide  tlie  event," 

C.  O  ^  Conor,  for  the  appellant.  I.  The  form  of  the  plaintiff's 
remedy  was  misconceived.  The  property  having  been,  in  good 
faith  and  in  due  course  of  business,  shipped  to  Europe,  and  be- 
ing, at  the  commencement  of  the  action,  actually  out  of  the  pos- 
session or  power  of  the  defendant,  and  beyond  tlie  jurisdiction 
of  the  court,  the  plaintiff  cannot  recover.  (1.)  To  maintain  the 
action  it  is  not  enough  that  the  defendant  should  be  responsible 
as  in  tort  for  an  unauthorized  conversion  of  the  plaintiff's  prop- 
erty. Replevin  is  not,  to  all  intents,  a  concurrent  remedy  Avith 
trespass  or  trover.  If,  at  the  time  of  the  action  brought,  the 
plaintiff  has  not  an  actual  subsisting  right  to  the  possession  of 
the  property,  he  cannot  recover.     (2.)  If  the  property'  had  not 


NEW  YOKE— oEPTEMBER,  1854.  553 

Van  Neste  v.  Conover. 

been  removed  the  sheriff  couhl  not  have  taken  it ;  for  the 
pledgees  hehl  it  by  a  paramount  title.  {Mowrey  v.  Walsh^  8 
Cowen,  2-38.  Root  v.  French,  13  Wend.  570.  Andrew  v. 
IJiefcrich,  14  id.  31.)  (3.)  The  intense  severity  of  the  reme- 
dial processes  allowed  to  the  plaintiff  in  this  action,  can  only  be 
justified  on  the  assun)ption  that  the  defendant  still  has  power 
over  the  property  and  could  surrender  it  to  the  sheriff;  but.  per- 
versely, and  in  contempt  of  the  process  of  the  court,  willfully  de- 
tains it.  ( Van  Neste  v.  Conover,  8  Barb.  509  ;  S.  C  5  How. 
Pr.  Rep.  148.) 

II.  Neither  the  sale  nor  the  delivery  was  conditional.  (1.) 
Every  sale  is  in  judgment  of  law  a  sale  for  cash,  unless  accom- 
panied by  an  express  stipulation  for  a  specified  term  of  credit. 
The  mere  absence  of  such  express  stipulation  works  precisely 
the  same  effect  as  the  presence  of  an  express  promise  fairly 
made  to  pay  cash  on  demand.  (2.)  When  a  delivery  is  duly 
made  in  reliance  upon  the  promise  to  pay  on  demand,  and  the 
purchaser  has,  in  good  faith,  acted  upon  it,  and  disposed  of  the 
property  by  sale,  pledge  or  other  irrevocable  appropriation,  the 
law  will  not  allow  the  seller  to  repent  of  his  confidence  and  res- 
cind the  sale;  thereby  turning  what  was  a  bona  fide  contract 
into  a  tort,  robbing  a  third  person  of  his  honestly  acquired  title, 
and  subjecting  to  strict  incarceration,  as  a  malefactor,  the  unfor- 
tunate trader  who,  without  guile  or  malpractice,  has  been  over- 
taken by  misfortune,  and  deprived  of  the  ability  to  fulfill  his 
promise,  {Smith  v.  Lynes,  1  Selden,  41.)  (3.)  In  all  the 
cases  in  which  a  perfected  delivery  upon  a  cash  sale  has  been 
adjudged  rescindable,  there  has  been  proved  some  trick  or  arti- 
fice working  a  surprise  upon  the  vendor.  Whenever  the  contract 
is  honestly  made,  and  the  intention  to  pay  is  not  disproved,  and  the 
delivery  is  voluntarily  and  understandingly  made  by  the  vendor 
in  the  usual  course,  relying  merely  upon  the  promise  to  pay,  the 
property  passes.  {Chapm,an  v.  Lathrop,  6  Coicen,  110.  Lu- 
pin V.  Marie,  2  Paige,  169 ;  ^S*.  C.  6  Wend.  77.  See  revievj 
0/  the  leading  cases  in  Smith  v.  Lynes,  3  Sandf.  S.  C.  R.  209.) 

III.  The  case,  fairly  viewed,  affords  no  evidence  of  an  intent 
not  to  pay,  which  is  the  only  fraud  that  could  be   pretended. 

Vol.  XX.  70 


554  CASES  IN"  TEE  SUPREME  COURT. 

Van  Neste  v.  Conover. 

Every  circumstance  brought  forward  to  excite  suspicion  is  fairly 
met,  and  every  inference  of  guile  on  the  part  of  the  defendant 
satisfactorily  repelled.  The  learned  justice  at  special  term  mis 
apprehended  the  facts.  {GaUager  v.  Brunei,  6  CoweTi,  346. 
18  Wend.  609.  1  Rawle,  315.  6  H(ur.  t^-  John.  256,  426. 
9  Watt.s',  572.     Alston  v.  Mech.  Mu.  Ins.  Co.,  4  Hill,  342.) 

IV.  This  is  an  excessively  hard  action.  The  plaintiff  had  a 
fair  trial  on  all  the  evidence ;  the  charge  was  so  favorable  to 
him  that  he  took  no  exception.  To  award  a  new  trial  in  such  a 
case,  is  contrary  to  the  settled  practice  of  the  courts,  and  amounts 
to  the  violation  of  a  fundamental  maxim.  In  these  cases  quasi 
criminal  nemo  debet  his  ve.rari  pro  eadem  causa.  {People  v. 
Superior  Court,  5  Wend.  114 ;  S.  C.  10  id.  289.) 

Wm.  Curtis  Noyes,  for  the  plaintiff".  I.  The  defendant's 
answer  admits  the  sale  of  the  corn  to  have  been  for  cash  on  de- 
livery ;  and  the  mode  of  delivery,  demand  of  payment,  and  the 
time  thereof  proven  on  the  part  of  the  plaintiff"  not  having  been 
contradicted  by  flie  defendant,  it  is  a' question  of  law  whether 
the  delivery  -was  of  such  a  nature  as  to  pass  the  title,  and  it 
should  have  been,  and  should  be  passed  upon  by  the  court  as 
such.  {Hill  V.  Hobert,  4  Shep.  164.  Van  Neste  v.  Conover, 
4  Hou).  Pr.  Rep.  149.     8  Barb.  509.) 

II.  Where  an  article  like  grain  is  sold  to  be  paid  for  on  deliv- 
ery, in  such  quantities  that  it  cannot  all  be  conveyed  at  once  to 
the  place  of  delivery,  the  delivery  is  not  complete,  nor  does  the 
title  pass  until  the  whole  quantity  has  been  delivered,  and  the 
amount  ascertained  and  paid  for,  unless  after  the  ascertainment 
of  the  amount,  credit  for  the  price  is  given,  or  the  condition  as 
to  the  payment  waived  in  some  other  way.  {Chit,  on  Cant.  392, 
notes.  Story  on  Sales,  §  313.  Andrews  v.  Dieterich,  14  We)td. 
31.  Ward  V.  Shaw,  7  id.  404.  Strong  v.  Taylor,  2  Hill, 
326.  Rapdye  v.  Mackie,  6  Cowen,  253.  Laicrence  v.  Wil- 
liams, 4  Camp.  181.  Whitwell  v.  Vincent,  4  Pick.  449.  Lev- 
en  v.  Smith,  1  Denio,  571.  Lucy  v.  Bandy,  9  N.  Harap.  R. 
208.  Hill  V.  Freeman,  2  Cushing,  257.  Tyler  v.  Same,  2 
id.  261.) 


NEW  YORK— SEPTEMBER,  1855.  555 

Van  Neste  v.  Conover. 

III.  A  delivery  of  personal  property,  to  pass  the  title,  means 
something  more  than  the  passing  of  an  article  from  one  to  an- 
other ;  it  must  be  a  delivery  absolute  in  its  nature,  and  with 
the  intention  to  pass  the  title,  leaving  nothing  to  be  done  by  the 
party  to  whom  delivered  to  make  his  right  to  retain  perfect. 
{Leven  v.  iSmith,!  De7iio,  571.  Whitwell  v.  Vincent,  4:  Pick. 
44:9,  a?id  cases  cited  above.) 

IV.  The  letters  offered  by  the  defendant  were  improperly  ad- 
mitted in  evidence.  They  were  not  evidence  against  us  for  any 
purpose.  {Maesters  v.  Abrarns,  1  Esp.  N.  P.  R.  375;  S.  C. 
10  Ves.  127.  Kahl  v.  .Tansen,  4  Taunt.  566.  Langhorn  v. 
Allmet,  Id.  511.  Keyner  v.  Pearson,  Id.  663.  Towle  v.  Ste- 
venson. 1  John.  Cas.  110.) 

V.  The  judge  should  have  instructed  the  jury  that  as  the  evi- 
dence of  the  plaintiff  was  undisputed  as  to  the  terms  of  sale, 
and  that  it  was  a  conditional  one,  and  as  to  the  presentation 
of  the  bills,  as  soon  as  the  amount  had  been  ascertained,  there 
was  no  question  that  a  delivery  had  not  taken  place,  the  corn 
not  having  been  paid  for  in  pursuance  of  the  condition.  {^Vo/» 
Neste  V.  Conover,  4  Howard's  Pr.  Rep.  149.  Hill  v.  Hoberl, 
4  Shep.  164.     Hill  v.  Freeman,  3  Cus/iii/g,  257.) 

VI.  The  verdict  was  contrary  to  evidence  ;  for  the  evidence 
proved,  (1.)  That  tjie  terms  of  the  contract  were  never  waived ; 
that  no  credit  was  given ;  and  that  the  sale  and  delivery  were 
only  conditional.  ( Graham  on  New  Trials,  361,  2,  5.  .lack- 
son  v.  Parker,  9  Coicen,  73.  Story  on  Sales,  §  313.  2  Kenl^s 
Owi.  497,  8.  De  Wolf  y.  Babbet,  4:  Mason,  2M.)  (2.)  That 
the  defendant,  having  got  the  corn  on  board  the  ship,  fraudu- 
lently appropriated  it  by  getting  bills  of  lading,  and  procuring 
advances  upon  them.  (3.)  Upon  these  facts  there  was  no  con- 
trariety of  evidence,  nor  any  dispute  whatever,  and  the  jury 
either  forgot  or  disregarded  the  testimony,  and  gave  a  verdict 
contrary  to  law  and  evidence. 

VII.  No  formal  exceptions  to  the  charge  were  necessary  on 
'he  trial  to  bring  up  the  questions  of  law  now  -presented ;  the 
case  alone  is  enough..  {Code,  §  264.  Archer  v.  Hub'jell,  4 
Wend.  514.) 


556  CASES  IN  THE  SUPREME  COUlir. 


A''an  Neste  v.  Conover. 


Till.  Judgment  should  liave  1)een  ordered  for  the  plaintiff  on 
the  pleadings  and  evidence;  and  as  the  verdict  has  been  set 
aside,  and  a  new  trial  granted,  the  order  to  that  effect  should  be 
affirrred  Avith  costs. 

Bi/  the  Court.  Mitchell,  P.  J.  This  appeal  is  from  an  order 
of  the  special  term,  granting  a  new  trial,  on  the  ground  that  the 
verdict  was  against  the  weight  of  evidence.  The  court  does  not, 
generally,  interfere  with  the  verdict  of  a  jury,  unless  it  is  clearly 
against  the  weight  of  evidence.  If  an}''  case  should  be  an  ex- 
ception this  ought  to  be,  as  the  case  was  presented  to  the  special 
term,  and  to  the  general  term,  on  former  occasions,  on  affidavits 
exhibiting  substantially  the  same  state  of  facts  as  appeared  at 
the  trial ;  and  both  tribunals  considered  a  case  of  fraud  or  of 
conditional  sale,  made  out,  and  in  that  conclusion  the  judge 
whose  order  is  now  appealed  from  concurs. 

The  facts  are  such  that  they  should  be  again  submitted  to  a 
jury.  The  defendant  obtained  all  his  means  which  he  had  in 
business,  by  advances ;  and  when  he  commenced  his  winter  or 
spring  dealing  in  flour  and  corn,  in  February,  1850,  he  owed 
$4000  or  $5000  which  he  had  contracted  in  the  preceding  sum- 
mer, and  which  was  still  due,  at  the  trial.  Between  Feb.  1850, 
and  his  failure  in  April  of  that  year,  his  purchases  amounted  to 
$245,000.  He  bought  the  plaintiff's  corn  of  Mr.  Melick  on  the 
29th  of  March  of  that  year.  Melick  stated  to  him  that  he 
wanted  to  sell  to  some  one  who  could  give  the  cash  as  soon  as 
the  corn  was  out  of  the  barges  ;  and  expressed  his  doubt  whether 
the  defendant  could  so  pay,  and  reminded  him  that  he  had  been 
buying  hu-gely,  during  the  winter  and  spring.  The  defendant 
replied  that  he  had  paid  for  those  purchases ;  that  he  did  not 
depend  on  his  own  resources  to  pay  for  the  corn  ;  that  he  had 
arrangements  with  other  parties  for  the  pay,  and  although  he 
was  buying  a  large  amount  of  corn  to  send  abroad,  yet  he  only 
occasionally  took  a  little  interest  for  himself  in  the  purchases; 
and  that  he  had  arrangements  made  with  a  party,  then,  for  the 
pay  for  the  corn  ;  that  he  could  give  the  money  for  the  corn  just 
as  soon  as  it  was  all  on  board  the  ship.     Melick  finally  told  him 


NEW  YOPwE:— SEPTEMBEPw,  1855.  557 

Van  Neste  v.  Conover. 

that  if  he  could  assure  him  that  he  had  the  money  arranged  for, 
80  that  he  could  pay  for  the  corn  when  it  was  in  the  ship,  he 
would  send  it  alongside  the  ship.  And  the  defendant  assui'ed 
Melick  that  the  money  was  so  arranged  for,  and  that  he  could  have 
the  money  as  soon  as  the  corn  was  all  on  board  the  ship,  and  on 
that  condition  Melick  agreed  to  deliver  the  corn.  The  corn  ^as 
all  delivered  on  the  2d  of  April,  and  a  bill  sent  to  the  defend- 
ant's store  on  the  same  day,  for  the  money.  On  the  3d  he  was 
personally  seen  and  payment  demanded,  and  he  said  it  was 
steamer  day  and  his  parties  were  very  busy  getting  off  their 
letters,  and  he  could  not  get  the  check  until  after  the  steamer 
sailed  ;  that  Melick  might  rely  on  it  early  next  morning.  The 
next  day  came,  and  he  said  he  was  ashamed  to  say  that  his  parti/ 
had  disappointed  him,  but  that  Melick  might  rely  on  the  money 
before  10  a.  m.  the  next  day.  Again,  on  April  5,  the  defend- 
ant made  an  excuse  on  account  of  the  death  of  his  father-in-law, 
and  promised  that  the  money  should  be  paid  during  the  day. 
It  was  not  paid  on  that  day,  and  his  book-keeper  gave  assurances 
that  it  should  be  paid  the  next  day.  The  next  day,  or  the  busi- 
ness day  after,  he  failed.  In  the  mean  time  he  had  obtained 
advances  on  this  corn,  and  applied  them  to  other  purposes.  The 
conduct  of  the  defendant  subsequent  to  the  sale,  was  evidence 
of  the  motive  which  influenced  him  to  make  the  purchase,  and 
looks  so  much  like  a  design  to  deceive  and  mislead,  that  it  should 
be  again  submitted  to  a  jury.  If  his  representations  are  to  be 
understood,  (as  it  is  insisted  the  cross-examination  showS  they 
should  be,)  as  stating  only  that  he  had  made  arrangements  that 
advances  should  be  made  on  his  corn  generally,  and  such  ar- 
rangements were  in  fact  made,  and  he  intended  when  he  purchased 
tne  corn  to  pay  for  it,  the  imputation  of  fraud  may  be  effectually 
repelled.  If  he  meant,  as  the  direct  examination  strongly  tends 
to  show,  and  his  subsequent  remarks  confirm,  that  he  made  the 
purchases  for  other  persons,  who  were  to  pay  for  the  corn,  and 
there  is  no  proof  that  this  was  true,  then  the  charge  of  misrep- 
resentation is  made  out. 

The  evidence  also  shows  a  sale  and  delivery  conditional  on 
the  payment  of  cash.     There  is  no  evidence  to  contradict  this. 


558        CASES  IN  THE  SUPREME  COURT. 

Van  Neste  v.  Conover. 

Yet  the  jury  finds  against  it.  If  another  jury  vshall  infer  from 
any  circumstances  that  the  delivery  was  intended  to  be  a  waiver 
of  this  condition,  and  there  should  be  such  circumstances  as 
would  justify  such  an  inference,  it  may  be  conclusive.  At  pres- 
ent, such  circumstances  do  not  appear.  If  the  delivery  on  board 
a  foreign  ship  were  alone  proof  of  a  waiver  of  the  condition, 
then  there  could  be  no  sale  for  cash,  of  corn  to  go  abroad,  with- 
out the  payment  being  made  before  the  delivery. 

The  question  was  raised,  but  not  discussed,  whether  this  ac- 
tion would  lie,  as  the  goods  had  been  transferred  as  security  to 
another,  and  were  on  board  ship,  and  not  under  the  manual  con- 
trol of  the  defendant  when  the  action  was  brought.  When  this 
case  was  before  the  general  term  the  first  time,  (8  Barb.  509,) 
it  was  held  the  action  lay.  And  that  was  the  main  question 
then  discussed,  although  the  motion  was  to  discharge  the  de- 
fendant from  bail.  Afterwards,  in  Merrick  v.  Suydam^  (1  Code 
Rep.  N.  S.  212,)  a  further  question  was  argued,  whether  the 
peculiar  bail  for  the  return  of  the  property  or  the  payment  of 
the  debt,  can  be  allowed  in  these  actions,  even  when  the  action 
lies,  if  the  property,  before  suit  brought,  has  passe4  from  the 
defendant's  hands  and  control  w^ithout  any  intention  to  evade 
the  process  of  the  court.  And  it  was  held  that  it  could  not  be 
allowed,  as  the  plaintiff,  to  obtain  such  bail,  must  make  an  affi- 
davit alleging,  in  the  present  tense,  that  the  defendant  is  in  the 
possession  of  the  property ;  but  the  court  still  held  that  the 
action  would  lie.  It  may  well  lie  ;  as  the  judgment  must  be  in 
the  alternative,  for  the  return  of  the  property  or  the  payment 
of  its  value  ;  and  thus  the  defendant  can,  if  he  has  not  the  prop- 
erty, satisfy  the  other  requirement  of  the  judgment,  and  pay 
the  value. 

The  order  granting  a  new  trial  is  aflBrmed,  with  costs. 

[Nbvv  York  General  Term,  September  3,  1865.  Mitchell,  Roosevelt  nnc! 
Morris,  Justices.] 


EEIE— JANUARY,  1855.  559 


Layman  vs.  Whiting. 

In  an  action  of  ejectment  the  plaintiff  is  bound  to  show  title  in  himself  at  the 
commencement  of  the  action. 

If  the  title  upon  which  he  relies  is  founded  upon  the  foreclosui'e  of  a  mortgage, 
by  advertisement  under  the  statute,  proof  of  a  regular  and  complete  foreclo- 
sure is  essential  to  the  validity  of  that  title. 

The  right  of  a  mortgagee  to  acquire  the  title  to  the  mortgaged  premises  upon  a 
sale  under  the  statute,  is  given,  and  the  manner  in  which  the  title  is  to  be 
transferred  to  him,  is  regulated,  by  statute. 

In  the  absence  of  a  deed  to  the  purchaser,  from  the  mortgagee,  the  affidavits  of 
the  publication  and  posting  and  service  of  the  notices  of  sale,  &c.,  take  the 
place  of  such  a  deed,  and  operate  as  a  statute  conveyance.  They  are  necessary, 
in  order  to  complete  the  foreclosure,  and  transfer  the  title  to  the  mortgaged 
premises ;  and  until  they  are  made  and  completed  no  title  will  vest  in  the 
purchaser. 

And  if,  in  an  action  of  ejectment  by  the  purchaser,  it  appears  that  the  affidavit 
of  service  of  the  notice  of  sale  upon  the  mortgagor  was  not  made  until  after  the 
commencement  of  the  action,  the  plaintiff  will  fail  to  show  title  in  himself  at 
the  time  the  suit  was  commenced,  and  must  therefore  be  nonsuited. 

The  making  and  recording  of  an  a,ffidavit  of  service,  after  the  commencement  of  the 
action,  will  not  vest  a  title  in  the  purchaser,  by  relation,  as  of  a  time  previous, 
so  as  to  enable  him  to  recover. 

Parol  evidence  of  the  service  of  the  notice  of  sale,  upon  the  mortgagor,  is  admis- 
sible ;  but  it  will  not  disi)ense  with  the  production  of  the  affidavit  specified  in 
the  statute. 

MOTION  for  judgment  on  a  verdict  for  the  plaintifiF  subject 
to  the  opinion  of  the  court  on  a  case  made  by  the  plaintiff. 
The  action  was  ejectment.  On  the  trial  the  plaintiff,  for  the 
purpose  of  proving  a  title  in  himself,  gave  in  evidence  a  mort- 
gage executed  by  the  defendant  to  the  plaintiff  on  the  first  day 
of  April,  1852,  on  the  premises  in  controversy,  to  secure  the 
payment  of  $-325  in  three  annual  payments.  The  plaintiff  then 
proved  by  proper  affidavits  the  publication  and  posting  of  a  no- 
tice of  sale  of  the  premises,  pursuant  to  the  statute  and  the  power 
contained  in  the  mortgage,  for  a  default  in  the  payment  of  the 
first  installment,  and  a  sale  of  the  premises  pursuant  to  the  pub- 
lished notice,  on  the  20th  day  of  July,  1853.  These  affidavits 
were  recorded  in  the  clerk's  office  of  Chautauque  county,  where 
the  premises  are  located,  on  the  6th  day  of  August,  1853.  It 
was  admitted  by  the  plaintiff  that  this  action  was  commenced  on 


5G0        OASES  m   TEE  SUPREME  COURT. 

Layman  v.  Whiting. 

the  22d  day  a/  August,  1853.  The  plaintiff  then  called  a  wit- 
ness and  proved  the  service  of  a  copy  of  the  notice  of  sale  on 
the  defendant,  by  leaving  it  at  his  residence,  in  his  absence,  with 
his  wife,  on  tlie  6th  day  of  July,  1853,  about  2  o'clock  in  the 
afternoon.  This  evidence  was  objected  to  by  the  defendant,  on 
the  ground  that  the  proof  should  be  by  affidavit.  The  objection 
was  overruled,  and  the  evidence  was  received.  The  plaintiff 
then  offered  in  evidence  an  affidavit  of  the  witness,  sworn  to  on 
the  20/A  day  of  September,  1853.  stating  that  the  witness 
served  the  notice  of  sale  on  the  defendant  at  the  time  and  in  the 
manner  above  stated.  This  affidavit  was  written  on  the  same 
paper  containing  the  affidavits  of  publication,  posting  and  sale. 
The  plaintiif  also  offered  to  read  the  certificate  of  the  clerk  of 
said  county,  of  the  recording  of  the  said  affidavit  of  service  with 
the  three  other  affidavits  above  mentioned.  The  defendant  ob- 
jected to  the  reading  of  this  affidavit  and  certificate,  on  the 
ground  that  it  should  have  been  made  and  recorded  before  the 
commencement  of  the  action.  The  objection  was  overruled,  and 
the  affidavit  and  certificate  Avere  read.  By  the  certificate,  it 
appeared  that  this  last  affidavit  was  recorded  on  the  20M.  day 
of  September,  1853.  The  evidence  here  closed,  and  the  defend- 
ant moved  for  a  nonsuit  on  the  grounds,  1.  That  the  notice  of 
sale  having  been  made  on  the  6th  day  of  July,  was  not  sufficient 
to  authorize  the  sale  on  the  20th.  2.  That  the  plaintiff  had  no 
title  at  the  time  the  suit  was  commenced,  because  the  proof  of 
service  of  the  notice  of  sale  could  not  be  made  by  parol,  and  that 
as  the  plaintiff  relied  on  proof  under  the  statute,  as  a  substitute 
for  a  deed,  the  affidavit  of  service  of  the  notice  of  sale  was  an 
ecsential  part  of  the  title,  and  that  the  title  did  not  vest  in  the 
plaintiff  until  the  affidavit  was  made  and  completed  ;  which  was 
not  done  until  after  the  suit  was  commenced. 

The  motion  was  denied  ;  and  the  court  directed  a  verdiet  foi 
the  plaintiff,  as  above  stated. 

D.  Sherman,  for  the  plaintiif. 

E.  Ward,  for  the  defendant. 


ERIE— JANUARY,  1855.  561 


Layman  v.  Whiting. 


Greene,  J.  I  think  this  motion  should  have'been  made  at 
a  general  term,  but  as  the  parties  have  argued  it  here  without  ob- 
jection, I  have  concluded  to  examine  and  decide  it,  and  the  motion 
can  be  renewed  in  form  at  the  general  term,  if  either  party  de- 
sires to  review  the  decision,  there. 

The  plaintiff  was  bound  to  show  a  title  in  himself  at  the  time 
of  the  commencement  of  the  action.  The  title  upon  which  he 
relies*  is  founded  upon  the  foreclosure  of  the  mortgage  executed 
by  the  defendant,  and  proof  of  a  regular  and  complete  foreclosure 
is  essential  to  the  validity  of  that  title.  The  only  questions 
raised  on  the  argument  are,  was  parol  proof  of  service  of  the 
notice  of  sale  on  the  mortgagor  suiBcient,  in  connection  with  the 
other  proof,  to  show  title  in  the  plaintiff;  and  if  not,  did  the 
making  and  recording  of  the  affidavit  of  such  service  after  the 
commencement  of  the  action  vest  a  title  in  the  plaintiff,  by  rela- 
tion, as  of  a  prior  time,  so  as  to  enable  him  to  recover  ? 

The  mortgagee's  right  to  sell  the  premises  is  derived  from 
the  power  contained  in  the  mortgage,  authorizing  him.  on  a  de- 
fault in  the  payment  of  the  mortgage  moneys,  to  sell  and  convey 
the  premises  and  pay  the  mortgage  out  of  the  proceeds  of  the 
sale.  The  manner  of  executmg  this  power  is  now  prescribed 
by  statute.  At  common  law  the  title  could  be  conveyed  only 
by  a  deed  from  the  mortgagee  to  the  purchaser,  and  as  the 
mortgagee  could  not  convey  to  himself,  he  could  not  acquire  a 
title  through  the  sale  under  the  power.  In  1808  a  statute  was 
passed  authorizing  the  mortgagee  to  purchase.  The  provision 
will  be  found  in  1  R.  L.  p.  375,  §  10.  and  is  in  these  words : 
"  No  title  to  mortgaged  premises,  derived  from  any  sale  made  in 
virtue  of  a  special  power  for  that  purpose,  in  the  mortgage  con- 
tained, shall  be  questioned,  impeached  or  defeated,  either  at  law 
or  in  equity,  by  reason  that  the  mortgaged  premises  were  pur- 
chased by  the  mortgagee,"  &c.  This  statute  provided  that  no- 
tice of  the  sale  should  be  published  and  posted  a  certain  time 
before  the  sale,  and  that  affidavits  of  such  publication  and  post- 
ing and  of  the  sale,  when  recorded  as  directed  by  the  act,  should 
be  received  in  all  courts  as  prima  facie  evidence  of  the  fiicts 
stated  in  such  affidavits.     This  act  merely  prescribed  the  man- 

Vol.  XX.  71 


562  CASES  IN  THE  SUPREME  COURT. 

Layman  v.  Whiting. 

ncr  of  executing  the  power  so  far  as  the  sale  is  concerntd,  and 
made  provision  for  perpetuating  the  evidence  of  the  regularity 
of  the  sale,  but  made  no  provision  as  to  the  mode  of  conveying 
the  title.  In  all  cases  except  where  the  mortgagee  was  the  pur- 
chaser, this  was  done,  as  at  common  law,  by  a  deed  from  him  to 
the  purchaser  ;  but  as  this  mode  of  conveyance  could  not  be 
adopted  where  the  mortgagee  was  the  purchaser,  it  was  held 
that  the  title  was  transferred  on  a  regular  sale  hy  force  «f  the 
statute.  {Jackson  v.  Colden,  4  Cowen,  266.)  The  deed  of  the 
mortgagee,  in  one  case,  and  the  statute  in  the  other,  transferred 
the  title,  and  in  either  case,  it  was  necessary  only  that  the  party 
claiming  title  through  the  foreclosure,  should  prove  a  due  exe- 
cution of  the  power  of  sale,  or  in  other  words,  prove  a  compli- 
ance with  the  statute  Avhich  prescribed  the  manner  of  that 
execution.  These  facts  might  be  proved  by  affidavits,  recorded 
pursuant  to  the  statute,  or  by  common  law  evidence. 

By  the  revised  statutes,  title  15,  ch.  8,  part  3,  (2  li.  S.  545, 
§  3,)  as  amended  by  the  laws  of  1844,  {ch.  246,  §  5,)  it  is  provided 
that  in  addition  to  the  publishing  and  posting  of  the  notice  of 
sale,  for  the  time  therein  prescribed,  a  copy  of  the  notice  shall 
be  served  at  least  fourteen  days  prior  to  the  time  therein  speci- 
fied for  the  sale,  upon  the  mortgagor,  &c.  Sections  9  and  10  of 
title  15  provide  for  the  making  of  affidavits  of  the  publication 
and  posting  and  service  of  the  notice,  and  of  the  circumstances 
of  the  sale.  Section  11  provides,  among  other  things,  that  such 
affidavits  may  be  filed  in  the  office  of  the  clerk  of  the  county 
where  the  sale  takes  place,  and  section  12  provides  for  the  re- 
cording of  such  affidavits  by  the  clerk,  and  that  '-  such  original 
affidavits,  the  record  thereof  and  certified  copies  of  such  records 
shall  be  presumptive  evidence  of  the  facts  therein  contained," 
By  section  14  of  title  15,  as  originally  enacted,  it  was  provided 
tiiat  where  the  mortgaged  premises  should  be  purchased  by  the 
mortgagee  or  his  assigns,  "  the  affidavits  of  the  jnihlication 
and  affixing  notice  of  sale  and  of  the  circumstances  of  snch 
sale,'"  should  be  evidence  of  the  sale  and  foreclosure,  and  *•  with- 
out any  conveyance  being  executed,''''  in  the  same  manner  and 
with  the  like  effect  as  a  conveyance  executed  by  a  mortgagee. 


ERIE— JANUAEY,  1855.  553 


Layman  v.  Whiting. 


apon  such  sale,  to  a  third  person,  had  theretofore  been.  By  an 
amendment  of  this  section  passed  in  1838,  {ch.  266,  §  8,  p.  263,) 
it  was  provided  that  the  same  eff^t  should  be  given  to  the  same 
rr^rfafzV^,  when  the  mortgaged  premises  should  be  purchased 
by  the  mortgagee  " or  by  any  other  "person  or  persons  vhat- 
soever.''^ 

It  will  be  seen  from  an  examination  of  these  statutes  that  the 
mortgagee's  right  to  acquire  the  title  to  the  mortgaged  premises 
on  the  sale,  is  g-iven,  and  that  the  manner  in  which  <the  title  is 
to  be  transferred  to  him,  is  regulated  by  statute.  The  statute 
of  1808,  which  first  gave  him  this  right,  as  we  have  seen,  pro- 
vided no  substitute  for  a  conveyance,  and  contained  no  provision 
in  relation  to  it ;  and  from  the  necessity  of  the  case,  it  was  held 
that  the  title  passed,  under  the  statute,  by  the  fact  of  the  sale. 
The  provision  of  the  14th  section  of  title  15  of  the  revised  stat- 
utes, that  the  affidavits  therein  mentioned,  when  the  mortgagee 
was  the  purchaser,  should  take  the  place  of,  and  have  the  same 
effect  as,  a  conveyance,  supplied  this  defect  in  the  old  statute, 
and  made  an  important  change  in  the  law  on  this  subject.  The 
effect  of  that  section,  as  amended  in  1838,  Avas  to  allow  a  sub- 
stitution of  those  affidavits,  in  place  of  a  conveyance  in  all  cases, 
so  that  in  case  a  third  person  purchases  at  the  sale,  this  stattite 
conveyance  may  now  be  adopted  in  the  place  of  a  conveyance 
from  the  mortgagee,  which  was  always  necessary  before  the 
amendment  of  1838. 

That  conveyance  may  still  be  made  by  the  mortgagee  in  such 
cases,  under  the  power  contained  in  the  mortgage,  and  when 
made,  I  have  no  doubt  that  common  law  proof  of  the  execution 
of  the  power  according  to  the  statute,  may  be  made,  in  the 
place  of  proof  by  affidavit.  In  such  a  case,  the  affidavits  are 
regarded  as  mere  evidence  of  certain  facts.  By  the  statute 
they  are  made  prima  facie,  but  not  exclusive  evidence  of  those 
facts ;  and  when  regarded  as  evidence,  I  see  no  reason  why 
common  law  evidence  may  not  be  resorted  to  in  the  place  of 
the  affidavits.  But  the  same  statute,  under  certain  circum- 
stances, assigns  to  these  affidavits  a  very  different  office.  In 
the  absence  of  a  deed  from  the  mortgagee,  they  take  the  place 


564  CASES  IN  THE  SUPREME  COURT. 

Layman  v.  Whiting. 

of,  and  operate,  as  a  conveyance  ;  and  until  the  statute  of  frauds 
is  repealed;  I  am  unable  to  see  how  the  title  can  pass  without 
a  regular  conveyance  from  the  mortgagee  or  this  statute  con- 
veyance which  has  been  substituted  in  its  place.  As  I  under- 
stand the  case  of  Arnot  v.  McClure.  (4  Denio,  41,)  it  estab- 
lishes this  precise  proposition.  That  was  an  action  of  eject- 
ment. The  plaintift"  claimed  under  a  sheriff's  deed  given  on  a 
sale  of  the  premises  on  a  judgment  against  a  former  owner, 
The  defendant  claimed  under  a  prior  mortgage  given  by  the 
judgment  debtor,  which  had  been  foreclosed  under  the  statute 
and  the  defendant  had  purchased  the  premises  on  the  sale.  In 
the  affidavit  of  sale  the  premises  were  so  described  as  not  to 
include  a  part  of  the  land  described  in  the  mortgage.  The  de- 
fendant offered  to  prove  by  the  auctioneer  Avho  officiated  at  the 
sale,  that  in  point  of  fact  he  offered  and  sold  the  whole  of  the 
mortgaged  premises,  and  that  a  clerical  mistake  was-  made  in 
the  description,  in  drawing  the  affidavit  of  sale.  The  evi 
dence  was  rejected,  and  the  plaintiff  had  a  verdict  under 
the  direction  of  the  circuit  judge,  for  the  part  not  described 
in  the  affidavit  of  sale.  The  defendant  moved,  on  a  bill  of  ex- 
ceptions, for  a  new  trial,  which  was  denied.  Bronson,  C.  J. 
in  delivering  the  opinion  of  the  court  said  "  the  affidavits  are 
a  statute  conveyance  ;  and  when  they  perform  that  office,  the 
purchaser  can  no  more  impeach  them  by  parol  evidence,  than 
he  could  a  conveyance  by  deed."  Some  doubt  is  expressed  in 
the  opinion,  as  to  the  right  of  the  purchaser,  under  any  cir- 
cnmstances,  to  contradict  the  affidavits  which  he  has  procured 
to  be  made  and  recorded,  but  the  reasoning  of  the  learned 
chief  justice  proceeds  upon  the  hypothesis,  and  the  case  is  de- 
cided on  the  ground,  that  the  affidavits  prescribed  by  the  stat- 
ute, in  the  absence  of  a  deed,  constitute  a  conveyance,  and 
are  necessary  to  ti-ansfer  the  title.  The  learned  chief  justice 
proceeds  to  say  "  without  a  conveyance,  or  a  substitute  for  it  in 
the  form  of  affidavits,  the  foreclosure  is  not  complete,  and  the 
equity  of  redemption  remains  in  the  mortgagor.  Where  a  deed 
has  been  executed  to  the  purchaser,  and  there  are  no  affidavits, 
the  regularity  of  the  proceedings  may  be  established  by  any 


ERIE— JANUARY.  1855.  555 


Lavman  v.  Whitins. 


good  common  law  evidence.  And  though  there  may  be  affi 
davits,  it  is  possible  that  other  evidence  may  be  admissible  to 
supply  defects,  and  show  a  sale  in  accordance  with  the 
deed.  *  *  *  Where  there  is  no  deed,  and  affidavits  supply 
its  place,  they  can  neither  be  contradicted  nor  amended  by  oral 
evidence." 

I  think  it  must  appear  obvious,  upon  reflection,  that  the  right 
to  contradict  the  facts  stated  in  the  affidavits,  or  to  prove  facts 
l)y  parol,  iii  addition  to  those  stated,  must  depend  upon  the 
question  whether  the  affidavits  are,  under  the  circumstances,  to 
be  regarded  as  a  conveyance  or  as  mere  evidence  of  the  facts 
which  authorize  the  execution  of  a  deed,  where  one  has  been 
given.  As  I  have  before  observed,  the  statute  makes  the  affi- 
davits prima  facie  evidence,  and  nothing  mor 

This  cannot  be  held  to  exclude  other  competent  evidence, 
and  if  a  title  could  pass  under  the  statute  by  a  mere  sale  of 
the  premises  in  pursuance  of  the  provisions  of  the  statute,  I  can 
see  no  objection  to  proving  all  of  the  essential  facts  by  parol,  or 
to  supplying  any  omissions  or  correcting  any  mistakes  in  the 
affidavits  when  they  are  used  as  evidence  of  the  same  facts. 
But  the  provisions  of  §  14,  substituting  affidavits  for  a  convey- 
ance, are  in  addition  to  the  provisions  of  §  12  making  the  affida- 
vits evidence  of  the  facts  therein  stated  ;  and  I  think  it  must 
be  held  upon  every  principle  of  construction  as  well  as  upon 
the  authority  of  adjudged  cases,  that  in  the  absence  of  a  deed, 
such  affidavits  are  now  necessary  in  order  to  complete  the  fore- 
closure and  transfer  the  title  to  the  mortgaged  premises. 

A  difficulty  arises  in  giving  a  construction  to  §  14,  in  conse- 
quence of  the  omission  of  the  legislature  to  amend  that  section, 
wlien  the  amendment  of  the  3d  section,  requiring  a  copy  of  the 
notice  of  sale  to  be  served  on  the  mortgagor,  was  made,  in 
1844.  It  will  be  remembered  that  the  14th  section  as  originally 
enacted,  provided  that  "  the  affidavits  of  the  publication  and  affix- 
ing notice  of  sale,  and  of  the  circumstances  of  such  sale,"  should 
be  evidence  of  the  sale  and  foreclosure  of  the  equity  of  redemp- 
tion (fee,  without  any  conveyance,  with  the  same  effect  as  a  deed 
of  the  mortgag&e,   executed  upon  a  sale  to  a  third  person,  had 


566  CASES  m  THE  SUPREME  COUET. 

Layman  v.  Whiting. 

before  been.  It  is  now  argued  by  the  plaintiff,  that  although 
service  of  the  notice  of  sale  is  indispensable  to  the  validity  of  the 
foreclosure,  the  title  may  still  pass  without  an  affidavit  of  that 
fact  or  a  deed,  provided  the  service  was  in  fact  made  ;  and  that 
the  fact  may  be  proved  by  parol.  This  argument  is  founded  on 
a  literal  reading  of  the  language  of  §  14,  without  regard  to  the 
amendment  of  1844.  The  deed  of  the  mortgagee  alone  was 
never  evidence  of  the  foreclosure.  It  was  so  regarded  only 
when  accompanied  by  due  proof  of  compliance  with  all  the  pro- 
visions of  the  statute  regulating  the  execution  of  the  power  of 
sale.  The  affidavits  mentioned  in  the  14th  section,  were,  by 
the  12th  section,  made  evidence  of  those  facts  ;  and  the  true  con- 
struction of  the  language  of  the  14th  se-ction,  before  the  amend- 
ment of  the  3d  section,  undoubtedly  was,  that  those  affidavits 
should  be  evidence  of  the  foreclosure  of  the  equity  of  redemp- 
tion in  the  same  manner  and  with  the  same  effect  as  the  deed 
of  the  mortgagee  accompanied  by  proof  of  the  facts  necessary 
to  authorize  the  execution  of  such  deed.  In  other  words,  the 
affidavits  were  made  an  instrument  of  conveyance,  as  well  as 
evidence  of  the  facts  authorizing  the  conveyance.  It  is  clear, 
therefore,  that  the  construction  of  the  14th  section  contended 
for  by  the  plaintiff,  will  in  effect  annul  the  amendment  of  1844. 
Upon  producing  the  affidavits  specified  in  §  14,  the  party  claim- 
ing under  the  foreclosure  would,  by  the  strict  letter  of  that  sec- 
tion, be  entitled  to  recover,  without  proof  of  any  kind,  of  a  service 
of  the  notice  of  sale  on  the  mortgagor  ;  for  the  section  in 
terms  makes  those  affidavits  prima  facie  proof  of  a  camplete 
foreclosure  of  the  equity  of  redemption  of  the  mortgagor  and 
all  claiming  under  him  :  and  as  between  such  parties  and  the 
mortgagee,  that  proves  a  title  in  him.  I  am,  therefore,  of  opin- 
ion that,  in  order  to  carry  out  all  of  the  provisions  of  this  act, 
those  of  §  14,  in  relation  to  the  effect  of  the  affidavits,  must  be 
read  in  reference  to  all  the  affidavits  mentioned  in  the  previous 
sections  of  the  act  as  amended,  and  that  all  of  those  affidavits 
are  essential,  in  the  absence  of  a  deed,  to  perfect  the  purchas- 
er's title.  The  affidavit  of  service  of  the  notice  of  sale  on  the 
mortgagor  was  not  made  in  this  case  until  after  the  commence- 


NIAGARA— SEPTEMBER,  1855. 


667 


Wyuliamer  v.  The  People. 

ment  of  the  action,  and  for  that  reason,  I  think  the  plaintiff 
foiled  to  show  a  title  in  himself  at  that  time. 

I  think  the  doctrine  of  relation,  relied  on  by  the  plaintiff,  is 
not  applicable  to  this  case.  In  all  the  cases  cited,  in  which 
that  doeti;ine  has  been  applied,  the  act  which  was  held  to  relate 
oack  to  some  prior  act,  and  thereby  vest  a  title  as  of  the  time 
of  such  prior  act,  was  to  be  done  by  some  party  other  than  the 
one  who  invoked  the  aid  of  this  doctrine ;  as  in  the  case  of  a 
deed  to  be  given  by  a  trustee,  or  by  a  sheriff  on  a  sale  made  by 
him  on  execution.  In  such  eases  it  would  be  unjust  that  a 
party  who  had  performed  all  the  conditions  on  his  part,  which 
entitled  him  to  a  conveyance,  should  suffer  by  the  neglect  of 
the  party  whose  duty  it  was  to  execute  it ;  and  this  doctrine, 
somewhat  artificial  in  itself,  is  resorted  to  to  prevent  such  in 
justice.  But  where  a  title  is  to  vest  by  a  party's  own  act,  and 
he  shows  no  impediment  in  the  way  of  its  performance,  and 
urges  no  reason  for  non-performance  but  his  own  neglect,  I  do 
not  perceive  the  necessity  or  propriety  of  applying  this  doc- 
trine in  his  favor.  No  precedent  has  been  cited  for  it,  and  I 
think  the  principle  of  the  doctrine  is  against  establishing  one 
in  this  case- 
There  must  be  a  judgment  of  nonsuit  on  the  verdict. 

[Eaie  Special  Tkbm,  Januarj-  1,  1855.     Greene.  Justice.] 


James  G.  Wynhamer.  plaintiff  in  error,  vs.  The   People 
OF  THE  State  of  New  York,  defendants  in  error. 


\?J» 


The  right  to  a  bill  of  exceptions,  in  a  criminal  case,  is  given  by  statute;  and 
its  office  is  to  bring  up  for  review  questions  of  law  made  and  decided  on  the 
trial. 

Th&  statute  which  gives  the  right,  limits  it  to  exceptions  taken  on  the  trial  of 
the  mam  issue.  It  is  not  extended  to  such  as  are  taken  on  the  trial  of  pre- 
liminary or  collateral  questions,  such  as  motions  to  quash  the  indictment  for 
irregularity,  challenges  to  the  array,  &c. 

The  last  clause  of  section  one  of  the  act  of  April  9,  1865,  for  the  prevention  of 


568  CASES  IN  THE  SrniEME  COURT. 

Wynliamer  v.  Tlie  People. 

intemperance,  pauperism  and  crime,  excepting  from  tlie  operation  of  that  sec- 
tion liquor,  the  right  to  sell  wliich  '•  is  given  by  any  law  or  treaty  of  the 
United  States"  does  not  apply  to  liquor  in  the  possession  of  a  person  who 
has  purchased  the  same  from  the  importer,  in  the  original  packages,  and 
who  retails  the  same  from  those  packages,  as  it  is  called  for. 

Tlie  selling  of  importtd  liquor,  by  any  person  other  than  the  importer,  and  such 
others  as  are  allowed  to  sell,  hy  the  act,  is  therefore  prohibited  by  the  first 
section  as  qualified  by  the  second  and  other  sections  of  the  statute.  And  ujh 
on  the  trial  of  an  indictment,  under  the  act,  evidence  by  the  defendant  to 
show  that  the  liquor  sold  by  him  was  imported  by  another,  from  foreign 
countries,  under  the  revenue  laws  of  the  United  States ;  that  the  duties  have 
been  paid  thereon ;  that  he  purchased  the  same  from  the  importer,  in  the 
l)ackages  in  which  it  \^'as  imported ;  and  that  it  was  drawn  from  those 
packages  when  sold  by  him,  is  immaterial,  and  should  be  rejected. 

The  right  to  sell  imported  liquor,  given  by  the  laws  of  the  United  States,  is 
subject  to  two  important  qualifications  ;  1.  That  it  remains  in  the  hands  of  the 
importer ;  and  2.  That  it  shall  be  sold  in  the  condition  in  which  its  importa- 
tion is  authorized,  and  that  all  sales  by  other  persons,  or  in  any  other  quantity 
or  condition  than  that  in  which  it  is  imported,  are  subject,  like  the  sales  of  all 
other  property,  to  such  regulations  as  may  be  prescribed  by  state  laws. 

The  right  is  neither  general  as  to  persons,  nor  in  its  application  to  the  property 
t(>  which  the  laws  of  the  United  States  relate.  The  right,  on  the  contrary,  is 
limited  to  certain  persons,  and  qualified  by  the  status  of  the  properly. 

While  it  is  in  the  hands  of  the  importer,  and  in  the  condition  in  which  it  was 
imported,  the  laws  under  which  he  has  imported  it  give  him  a  riarht  to  sell  it 
in  that  condition.  This  is  the  extent  of  the  right.  When  he  part.s  with  the 
proiierty,  or  changes  its  condition,  his  right,  and  all  right  to  sell  it,  derived 
from  those  laws,  ceases.  It  is  no  longer  the  right  to  sell  which  is  given  by 
the  laws  of  the  United  States. 

The  prohibition  of  the  sale  of  liquor,  contained  in  the  first  section  of  the  act  fijf 
the  i>rcvention  of  intemperance,  pauperism  and  crime,  passed  April  9,  1855, 
as  it  is  qualified  by  the  second  and  other  sections,  is  not  repugnant  to  the  pro- 
visions of  the  constitution,  but  is  a  valid  legislative  act. 

ERROR  to  the  court  of  sessions  of  the  county  of  Erie.  The 
plaintiff' in  error  was  indicted  for  a  violation  of  the  "act  for 
the  prevention  of  intemperance,  pauperism  and  crime,"  passed 
April  9, 1855,  {Laws  of  1855,  p.  340,)  in  selling  brandy  (not 
being  liquor  the  sale  of  which  was  authorized  by  the  laws  of 
the  United  States,)  to  persons  not  authorized  to  sell  liquor  by 
the  act  above  mentioned.  The  facts  appearing  upon  the  trial, 
and  the  questions  there  raised,  are  stated  in  the  opinion  of  the 
court.     At  the  close  of  the  testimony,  the  defendant's  counsel 


NIAGARA— SEPTEMBER,  1855.  555 


Wynhanier  v.  The  People. 


requested  the  court  to  charge  and  direct  the  jury  to  acquit  the 
defendant,  on  various  grounds,  specified.  The  court  refused  so 
to  charge,  and  the  defendant  excepted. 

The  defendant's  counsel  asked  the  judge  to  charge  that  the 
people  must  prove  that  the  liquor  sold  by  the  defendant  was 
intoxicating.  The  court  charged  that  if  the  defendant  was 
proved  to  have  sold  brandy,  that  was  intoxicating  liquor  wuthin 
the  meaning  of  the  act.  To  which  charge  the  counsel  for  the 
defendant  excepted.  The  jury  found  the  defendant  guilty,  and 
he  brought  a'writ  of  error. 

P.  J.  Fitkian,  for  the  plaintiflF  in  error.  The  court  of  general 
sessions  erred  in  excluding  the  evidence  offered  by  the  plaintiff 
in  error,  and  admitted  to  be  true  by  the  people,  that  the  liquor 
in  question  was  "  imported."  This  was  material  evidence,  be- 
cause the  sale  of  "  such  liquor"  is  not  prohibited  by  law  and 
constitutes  no  offense  known  to  the  laAV. 

I.  The  indictment  in  the  case  and  the  prosecution  is  under 
and  by  virtue  of  the  act  of  April  9th,  1855,  usually  termed  the 
"  prohibitory  liquor  law."  It  seeks  to  bring  itself  solely  within 
the  provisions  of  that  statute  ;  refers  to  it  by  its  title  and  con- 
cludes "  contrary  to  the  form  of  the  statute,"  (fcc. 

II.  By  the  true  construction  of  the  1st  section  of  this  act,  all 
imported  liquors  are  excepted  from  its  operation,  and  are  not 
within  any  of  its  penalties  or  prohibitions,  and  may  be  sold  in 
this  state  by  the  large  or  small  quantity,  without  subjecting 
the  vender  io  any  punishment  or  penalty.  (1.)  The  true  rule 
of  construing  statutes  is  to  read  and  examine  them  by  the  words 
they  contain,  and  according  to  the  natural,  most  obvious  import 
of  the  language  used ;  and  it  is  only  when  the  language  is  ob- 
scure and  ambiguous  that  it  is  allowed  to  resort  to  "compari- 
son," "  intention,"  or  any  other  matter  aside  from  the  fair  import 
of  the  language  used.  {Smith  on  Statutes,  §§  505,  545.  7 
Barn.  ^-  Ores.  569.  10  id.  520.  1  Kent,  1th  ed.  511.  Story 
on  Const.   §  426.     15  John.  394.     13  Mass.  Rep.  343, 4.     21 

Wend.  561.     Dartmouth  Cvlleife  case,  4   Wheaton.      VatteVs 
Law  of  Nations,  h.  2,  ch.  17,  pp.  244,  245,  256.     Pnffendorf, 
Vol.  XX.  72 


570        CASES  m  THE  SUPREME  COURT. 

Wj'nliamer  v.  The  People. 

p.  13,  §  12.)  (2.)  Adopting  this  rule  of  construction,  it  is  clear 
that  the  concluding  sentence  of  the  first  section  of  the  prohibi- 
tory liquor  law  excepts  from  the  operation  of  that  section 
"  LiQ,uoR  ;"  not  a  right  of  sale  of  liquor,  but  the  "  liquor"  itself  in 
specie.  (3.)  The  language  of  the  exception  itself  assumes  and 
declares  that  there  are  some  kinds  or  qualities  of  liquor,  the 
right  to  sell  which  "  in  this  state"  is  given  by  law  and  treaties 
of  the  United  States.  (4.)  AW  imported  liquor  ha.^!Ltt?Lc\\Q(\.  to 
it,  by  the  laws  of  the  United  States,  a  right  of  sale  "in  this 
state."  {Brown  v.  Maryland,  12  Wheat.  419.)  And  although 
that  •'  right  to  sell  in  this  state"  is  confined  to  specified  persons, 
and  while  the  liquor  is  in  specified  casks  or  packages,  still  as  to 
those  persons,  and  while  thus  kept,  "  the  right  to  sell  in  this 
stats'^  is  absolute,  perfect  and  unqualified.  Here  then  is  "liquor,^' 
answering  in  every  respect  the  requisites  and  conditions  called 
for  by  the  exception.  Why  should  it  not  be  laithin  the  excep- 
tion, and  without  the  prohibition?  1st,  The  language  of  the 
exception  is  broad  and  full.  It  is  not  confined  to  any  "  persons," 
"  packages"  or  conditions  of  the  liquor  excepted.  2d.  The  ex- 
ception is  not  limited  to  quantity  or  kind,  whether  sold  by  the 
drink  or  by  the  cask.  If  Wynhamer's  liquor  ever  was  liquor, 
the  "  right  to  sell  which  was  given,  &.c."  then  that  liquor  is  not 
prohibited.  (5.)  This  construction  is  in  no  respect  in  conflict 
with  any  other  section  or  provision  of  the  act.  The  22d  section 
of  the  statute  contains  no  prohibition  whatever.  It  sustains  the 
exception  in  the  first  section,  to  the  extent  of  sales  by  the  "  im- 
porter" in  the  "  original  package,"  and  does  not  in  any  respect 
limit  or  restrain  the  language  of  the  exception,  as  to  sales  by 
OTHER  persons  in  other  quantities.  The  prohibitions  in  the  3d 
and  18th  sections  have  no  reference  to  this  question  at  all. 
(6.)  The  limitation  which  is  sought  by  some  to  be  put  upon  the 
exception  under  consideration,  by  a  verbal  criticism  on  the  word 
"  15,"  cannot  obtain  ;  for  that  is  in  eff'ect  a  concession  that  the 
construction  contended  for  by  the  plaintiff  in  error,  is  true  as  to 
all  foreign  liquor,  imported  into  the  country  since  July  4th. 
Thus  making  a  senseless  and  useless  distinction  as  to  the  time 
when  foreign  liquor  was  imported.     (7.)   The  construction  con- 


NIAGARA— SEPTEMBEIi,  1855.  57  | 

Wynhamer  v.  The  People. 

tended  for,  by  the  plaintiff  in  error,  is  in  no  respect  in  conflict 
with  that  rule  of  construction  of  statutes  which  requires  they 
should  be  read  and  interpreted  in  accordance  with  their  true  in- 
tent and  meaning.  Because,  1st.  The  intent  and  meaning  of  a 
statute  is  to  be  gathered  from  the  language  of  the  act  itself, 
upon  a  full  and  fair  reading  of  all  its  provisions  in  accordance 
with  established  rules  of  construction,  (see  authorities  before 
cited.)  2d,  To  depart  from  the  act  itself,  and  grope  in  the  wide 
field  of  conjecture,  would  lead  to  endless  confusion.  It  would  be 
impossible  to  discover  any  common  intent  on  the  part  of  the 
individual  legislators.  3d.  In  seeking  the  intent  from  the  act 
itself,  we  can  gather  no  light  from  the  title  of  the  act.  It  is 
meaningless,  and  determines  nothing  on  the  question  under  dis- 
cussion. Although  indicative  of  a  general  purpose,  it  points  to 
no  particular  means.  It  could  be  attached  with  equal  propriety 
to  a  law  suppressing  gambling,  horse  racing,  or  the  Mormon  re- 
ligion. And  this  liquor  statute  might  with  equal' propriety,  so 
far  as  the  question  of  construction  is  concerned,  be  entitled  "  An 
act  to  promote  the  welfare  of  the  people  of  the  state  of  New 
York."  For  these  reasons  it  is  not  allowable  to  resort  to  the 
title  or  preamble  of  a  statute  for  interpretation.  (1  Kent,  509, 
led.  20.)  4th.  In  arriving  at  the  intent  and  meaning  of  a  stat- 
ute, all  the  words  of  the  act  must  be  so  construed  as  to  give 
them  some  effect.  {Smith  on  Stat.  §  527.  7  Barn.  4*  Cress. 
569.)  And  consequently  the  language  of  the  exception  in  the 
first  section,  is  to  have  its  full  weight  and  force  in  ascertaining 
the  general  intent  of  the  statute.  5th.  So  in  construing  a  stat- 
ute by  the  rule  of  looking  at  the  old  law,  the  mischief  and  the 
remedy,  it  is  allowable  to  look  outside  the  statute  for  the  mi.^- 
chief.,  but  the  '•^remedy'''  must  be  ascertained  from  the  body  of 
the  act  itself.  {Smith  on  Stat.  §  530.)  6th.  So  the  plain  lan- 
guage of  a  statute  is  not  to  be  rejected  in  construing  laws,  on 
the  ground  of  its  leading  to  an  absurd  conclusion,  unless  the  ab- 
surdity be  such  as  could  not  be  attributed  to  any  man  in  his 
right  senses.  {VatteVs  Laic  of  Nations,  245.)  7th.  Applying 
these  rules  of  construction  to  this  statute,  it  is  impossible  to 
say,  as  some  have  pretended,  that  it  Avas  the  clear  intend  of  thia 


572  CASES  ra  THE  SUPREME  COURT. 

Wynhamer  r.  The  People. 

statute,  that  foreign  as  Avell  as  domestic  liquors  should  be  pro- 
hibited from  sale  as  a  beverage.  It  is  clear  from  every  section 
and  provision  of  this  statute,  that  it  was  not  intended  to  wholly 
prohibit  the  use  of  intoxicating  liquor  as  a  beverage,  or  wholly 
to 'prevent  the  sale  of  it  for  that  purpose.  The  act  expressly 
authorizes  every  body  who  chooses,  to  i?nporf,  to  maniifactiire, 
to  bvy  and  to  nse  intoxicating'  liquor,  in  any  way  he  pleases, 
provided  he  does  not  keep  it  or  sell  it  contrary  to  the  act.  It  also 
authorizes  many  persons  to  s:U  it  for  many  purposes  :  and  in- 
toxicating cider  and  intoxicating  pw-e  vnne,  made  from  grapes 
grown  by  the  manufacturer,  are  authorized  to  be  sold  without 
limitation,  to  all  persons,  for  all  purposes.  These  are  all  excep- 
tions to  the  general  prohibitory  provisions  of  the  1st  section. 
No  one  denies  that  the  legislature  meant  these  exceptions,  be- 
cause it  has  said  so.  How  then  can  it  be  said  the  law  does  not 
mean  what  it  says,  in  the  first  exception  as  to  foreign  liquor? 
8th.  If  the  I'egislature  had  intended  to  limit  the  effect  of  this 
exception  to  sales  by  importers  and  liquor  in  the  original  pack- 
ages, they  could  and  would  have  said  so.  They  knew  how  to 
express  their  meaning  in  the  7th  and  22d  sections.  9th.  The 
language  in  the  7th  section,  in  regard  to  the  custom  house  re- 
ceipts and  marks  on  the  casks  and  packages,  corroborates  the 
construction  coi^ended  for  by  the  plaintiff  in  error,  because  if  it 
were  intended  that  only  the  importer  should  sell  in  the  imported 
package,  then  there  would  be  little  danger  that  he  would  fill 
his  imported  casks  with  an  adulterated  domestic  article.  On 
the  contrary  if  it  were  understood  that  foreign  liquor  was  not 
prohibited,  then  there  was  great  good  sense  and  reason  in  re- 
quiring the  dealer  to  furnish  other  and  further  proofs  than  the 
custom  house  brands  and  certificates,  that  his  liquor  actually 
was  imported.  (8.)  Another  rule  of  construction  of  statutes, 
which  is  paramount  to  all  others,  and  to  which  there  is  no  ex- 
ception, and  Avhich  ought  to  be  conclusive  as  to  the  construction 
of  the  statute  in  question  is,  that  "penal  statutes  are  to  be  con- 
strued strictly,"  and  with  "  regard  to  the  principles  of  the  com- 
mon law;''  {Kevfs  Com.  1th  ed.  p.  514.  Smith  on  Stat.  sec. 
468-748.     Savage,  J.,  7  Coicen,  253 ;)  for  it  is  not  to  be  pre- 


KIAGARA— SEPTEMBER,  1855.  '    573 


Wynhamer  v.  The  People. 


sunied  that  the  legislature  intended  to  make  any  innovation  upon 
the  common  law,  further  than  the  language  of  the  statutes  abso- 
lutely requires.  All  laws  in  ''■restraint  of  natural  liberty. ^ 
those  that  forbid  any  thing  '•'  not  in  itself  unlawful^''  or  which 
"  derogate  in  any  other  manner  frofti  the  general  law  ;"  those 
which  inflict  '''"penalties  or  punishments  for  crimes  or  offenses  ;" 
such  as  "  work  forfeitures,^^  derogate  from  the  ^'rights  of  prop- 
erti/,'^  or  work  "  disability/  of  persons  ;"  or  such  as  impose  re- 
strictions upon  "  trade,  commerce  or  the  common  occupations  of 
men  ;''  or  which  lay  "  an  excise  or  tax  on  thee  itizen" — are  among 
those  which  are  enumerated  in  the  books  as  coming  within  the 
rule  above  stated,  applicable  to  "  penal  statutes."  (9  )  The  act 
of  April  9th,  1855,  for  the  prevention  of  intemperance,  (fcc.  in- 
cludes in  its  provisions,  each  and  every  of  the  foregoing  ele- 
ments and  characteristics,  which  the  law  and  the  courts  have 
always  considered  and  treated  as  "odious."  It  is  therefore  a 
subject  particularly  requiring  a  stringent  application  of  the  rule 
of  strict  construction.  The  history  of  the  law  in  this  country 
and  England  abounds  with  instances  where  wise  and  patriotic 
judges,  armed  with  this  power  of  strict  construction,  have  ex- 
tracted the  venom  from  tyrannical  and  oppressive  laws  enacted 
in  times  of  excitement,  the  offspring  of  the  ignorance  an  dpas- 
sions,  and  not  of  the  judgment  and  consciences  of  men  ;  and 
made  such  laws  in  some  degree  tolerable  to  the  citizens.  And 
Bo  too  in  cases  where  the  law  contained  but  one  or  two  "  odious" 
features. 

Having  thus  established,  as  we  believe,  that  the  plaintiff  in 
error  in  this  case  has  not  been  guilty  of  a  violation  of  the  statute 
by  virtue  of  which  he  has  been  prosecuted  to  conviction  and 
sentence,  if  the  court  should  be  against  us  upon  that  point, 
then  our  next  proposition  is  that  the  statute  itself  cannot  be 
upheld  by  the. courts  as  a  law.  That  in  all  its  principles,  pro- 
visions and  features,  it  usurps  and  assumes  to  exercise  powers 
inconsistent  with  the  nature  of  republican  and  free  government, 
and  such  as  have  uniformly  been  deemed  tyrannical  and  char- 
acteristic of  a  despotism,  and  are  not  therefore  within  the  scopo 
and  purview  of  the  general  grant  of  "legislative  power,"  con 


574  ^  CASES  IN  THE  SUPREME  COURT. 

Wynhanier  v.  The  People. 

ferred  by  the  constitution  and  the  peeple  upon  the  legislature  ; 
■wherefore  the  statute  is  null  and  void.  And  further,  that  the 
statute  in  question,  is,  as  it  respects  most  of  its  provisions,  in 
conflict  with  those  clauses  of  the  state  and  national  constitu- 
tions, Avhich  have  for  their  object  the  protection  of  the  citizen 
in  the  enjoyment  of  his  personal  " libei'tt/"  " security"  " hiisi- 
7iess," '^  rights"  and  " /:>?'o/>er^y,"  "  privileges  and  franchises." 
and  therefore  it  is  void  and  must  be  so  declared  by  the  courts. 

I.  It  is  clear  that  this  statute,  as  regards  the  business  and 
subject  matter  upon  which  it  acts,  is  a  statute  for  prohibition 
and  restriction,  and  not  one  of  regulation  merely.  The  former 
excise  laws  Avere  statutes  of  regulation  merely ;  they  left  the 
Avhole  traffic  untouched  in  the  main,  not  pretending  even  to  reg-- 
ulate,  only  in  respect  to  sales  in  quantities  under  five  gallons, 
and  in  regard  to  those  sales  imposing  but  few  restrictions  as  to 
persons,  and  none  as  to  the  purposes  for  which  the  liquor  should 
be  sold.  On  the  contrary,  the  law  of  1855  acts  upon  the  whole 
traffic,  (save  only  it  has  made  particular  exception  where,)  and 
seeks  the  certain  destruction  of  the  whole  mass  of  property  in  this 
state,  known  as  intoxicating  liquor,  save  only  the  comparatively 
trivial  quantity  needed  for  mechanical,  medicinal  and  sacra- 
mental purposes,  and  which  form  but  a  mere  minimum.  The 
statute  provides  that  the  liquor  shall  not  be  "  sold  or  kept  for 
sale  or  with  intent  to  be  sold,  nor  shall  it  be  given  away,  nor 
shall  it  be  kept  or  deposited  in  any  place  whatsoever.  And  all 
liquor  kept  in  violation  of  these  provisions  is  declared  to  be  a 
nuisance  and  authorized  to  be  seized  and  destroyed."  The 
mere  statement  of  its  provisions  shows  the  statute  is  intended 
to,  and  does,  reach  far  beyond  mere  regulation  of  the  traffic  and 
the  property. 

II.  The  next  proposition  is  that  although  the  courts  may,  and 
frequently  do,  in  pronouncing  upon  statutes,  declare  some  por- 
tions of  a  statute  unconstitutional  and  void,  and  uphold  and  sus- 
tain other  portions  thereof  as  good  and  valid ;  yet  this  is  when 
the  obnoxious  provisions  are — either  as  to  the  persons  and  things 
upon  which  they  act — the  objects  and  purposes  they  seek  to 
accomplish — the  principles  upon  which  they  are  based,  or  the 


NIAGARA— SEPTEMBER,  1855.  57/5 

Wynhamer  v.  The  People. 

particular  remedies  or  modes  of  proceeding  which  they  author- 
ize— so  separate,  distinct  and  independent  of  the  other  valid 
provisions  of  the  statute,  that  they  can  be  expunged  "without 
materially  aflFecting  the  other  provisions.  But  where,  as  in  the 
statute  under  consideration,  it  is  one  connected  system  or  series 
of  measures,  having  a  single  object  and  purpose,  acting  upon  a 
particular  class  of  persons  and  business,  a  specified  kind  of 
propert}',  and  where  the  bad  (if  any)  is  connected  and  blended 
with  the  good  in  the  same  sections  and  sentences,  so  that  the 
bad  cannot  be  separated  without  leaving  the  whole  system  im- 
paired and  so  imperfect  as  to  require  legislation  to  give  it  any 
life  or  effect ;  then  it  is  submitted  the  statute  must  stand  or  fall 
as  a  whole.  {Shaw,  J.,  in  Commonwealth  v.  Albro,  1  Gray's 
Mass.  R.  49.) 

III.  In  this  country  the  legislatures  are  not  omnipotent  or  un- 
limited in  their  powers,  even  when  not  restrained  by  any  consti- 
tutional restriction.  They  cannot  pass  despotic  laws,  or  laws 
contrary  to  natural  rights  and  justice,  even  though  there 
be  no  express  constitutional  inhibition.  And  if  the  legislature 
does  so  far  depart  from  its  legitimate  purpose  and  authority,  as 
to  usurp  such  powers,  the  judiciary,  which  is  a  co-ordinate 
branch  of  the  government,  will  declare  its  acts  void.  We  grant 
(says  Chief  Justice  Marshall,)  that  "  the  representatives  of  the 
people  are  the  shepherds,  to  preserve  the  flock  ;  but  they  are 
not  exclusively  such.  If  through  inadvertence  or  design  they 
should  endeavor  to  sacrifice  any  one  or  more  as  victims,  it  can- 
not be  done,  so  long  as  the  judiciary  remain  virtuous,  intelli- 
gent and  independent.  Both  departments  must  concur  to  work 
iniquity  before  the  people  can  be  made  to  mourn,  and  in  bitter- 
ness to  curse  their  government.''^  (].)  The  proposition  that 
the  legislatures  of  this  country  are  limited  in  their  powers, 
aside  from,  and  independent  of  constitutional  restriction,  is  de- 
ducible  from  the  form  and  structure  of  the  governments  them- 
selves, and  the  received  and  recognized  political  maxims  and 
truths  upon  which  the  governments  are  based*  (See  preamble 
and  resolution  first,  of  the  declaration  of  rights  of  the  general 
congress  of  deputies  at  Philadelphia,  1774;  Declaration  of  Indo- 


576  CASES  IN  THE  SUPREME  COURT. 

Wyuhamer  v.  The  People. 

pendence.)  (2.)  The  proposition  is  further  sustained  by  the  fact 
that  the  colonial  legislatures  of  this  country  from  the  first  set- 
tlement of  the  country  and.  organization  of  society  here,  were 
subordinate  and  limited  in  their  action.  They  were  not  even 
possessed  of  the  supreme  legislative  power.  (See  history  of 
colonial  governments,  Massachusetts,  Hartford  and  Connecticut 
and  others.)  (3.)  The  fundamental  maxim  of  a  free  government, 
professing  to  derive  all  its  powers  from  the  consent  of  the  govern- 
ed, renders  it  impo^ssible  that  the  legislature  should  possess  the 
power  to  pass  unequal  and  unjust  laws.  For.  inasmuch  as  the 
great  end  and  object  of  all  government  and  organized  society  is 
"  protection  to  person  and  property,"  so  no  legislature  or  body 
of  representatives  can  possibly  be  vested  with  authority  to  sub- 
vert the  very  ends  and  objects  for  which  it  was  created.  And 
so  no  legislative  body  can  by  any  possibility  be  authorized  or 
empowered  to  do  that  which  the  whole  body  of  the  people,  when 
in  a  state  of  nature,  would  not  be  authorized  to  do  ;  viz  :  to  de- 
prive any  one  person  of  his  rights  of  liberty,  property  or  the 
pursuit  of  happiness,  provided  he  had  not  forfeited  either  of 
those  rights,  by  criminal  conduct  or  injury  to  others.  (1  Lie- 
her's  Political  Ethics,  188,  189,  194,  202.  Wooddesmi's  Lec- 
tures upon  Lmc.  Domat  Civil  Law.  VatteVs  Law  of  Nature 
and  Nations.  Book  4,  §§  45,  51.  Works  of  John  Locke,  vol.  5, 
chap.  11.  Opinions  of  Chase,  J.,  in  Caldar  v.  Bull,  3  Dallas, 
386.  6  Cranch,  87.  2  Dallas,  310.  University  of  Mary- 
land V.  Williams,  9  Gill  6^  John.  365.  Taylor  v.  Porter, 
4  Hill.  146.  18  Wend.  9.  2  Peters,  654.  1  Baldwin,  223. 
4  Barh.  64.) 

IV.  In  the  enactment  of  the  "  prohibitory  law"  in  question, 
the  legislature  has  for  the  jBrst  time,  in  the  history  of  legisla- 
tion in  this  country,  by  a  government  acknowledging  itself  to 
be  based  upon  the  free  principles  before  mentioned,  assumed  to 
usurp  and  exercise  many  of  those  despotic  and  arbitrary  pow- 
ers which  cannot  exist  in  them,  consistently  with  the  principles 
which  have  been  shown  to  be  the  basis  and  foundation  of  our 
system  of  government.  (1.)  This  statute,  so  far  as  it  affects 
property  in   existence,  at  the  time  of  its  taking  eflFect,  directly 


NIAGARA  -SEPTEMBER,  1835.  577 


AVynhamer  v.  The  People. 


or  indirectly,  or  interferes  with  the  business  of  manufacture 
jind  sale  of  intoxicating  liquor,  is  not  ifi  any  sense  a  laio.  But 
is  rather  a  legislative  sentence  or  edict  of  destruction,  resem- 
bling more  an  imperial  iikase  or  despotic  decree,  than  a  legal 
constitutional  statute,  prescribing  a  "rule  of  action"  for  the 
future  conduct  of  man.  (2.1  This  is  a  law  chantjins  innocence 
into  guilt.  It  punishes  citizens  for  an  innocent  act,  or  rather 
for  no  act  at  all,  and  makes  that  to  be  crjminal,  which  Avhen 
done  was  in  violation  of  no  existing  law.  {See  §§  1,  4,  10,  16, 
35,  of  the  statute.)  Up  to  12  o'clock  in  the  night  of  the  3d  of 
July,  it  was  perfectly  lawful  and  innocent  for  the  manufacturer, 
dealer  and  owner  of  liquor,  to  sell  and  keep  for  sale,  and  with 
intent  to  be  sold,  to  give  away,  and  keep  to  be  given  away  and 
keep  and  deposit  in  any  and  all  places  whatsoever,  all  the 
liquors  owned  or  possessed  by  him.  Then  come  the  provisions 
of  this  statute,  which  do  instantaneously,  by  a  simple  legisla- 
tive declaration,  declare  all  such  liquors  forfeited,  devote  them 
to  destruction,  and  mulct  the  owner  thereof  in  severe  penal- 
ties and  forfeitures,  when  he  has  done  no  single  act  in  regard  to 
them,  but  has  only  let  tliern  alone.  (3.)  It  compels  a  man  to 
be  a  witness  against  himself,  or  if  he  refuses  to  testify,  it  as- 
sumes the  truth  of  the  criminal  charge  against  him.  And  in 
one  case  destroys  his  property  without  any  evidence  whatever, 
and  in  another  case  deprives  him  of  a  substantial  privilege  and 
franchise  belonging  to  citizens  of  this  state.  (>S'ee  §§16  and  7.) 
(4.)  It  is  a  retrospective  law  with  a  retroactive  effect.  It  de- 
stroys vested  rights  in  private  property,  and  violates  the  rights 
of  lawful  antecedent  contract.  ( Opinion  of  Chase,  J.,  in  3  Dal- 
las, 386.)  (5.)  It  seizes  upon  large  amounts  of  property  be- 
longing to  citizens,  and  takes  it.  If  for  public  use  it  does  so  with- 
out compejisation  ;  if  not  for  public  use,  then  it  is  worse  tJ.'wll 
taking  the  property  of  A.  and  giving  it  to  B.,  for  it  destrojl; 
the  property  without  benefit  or  use  to  any  body.  These  poV/CrS 
have  always  been  esteemed  beyond  the  reach  of  legislaii/O  :*Zl- 
terference.  (»S'ee  authorities  before  cited.  Tracy,  setr-zifr, 
18  Wend.  9.) 

Having  thus,  as  we  believe,  suflBciently  maintained  iho  ^J"v 

Vol.  XX.  73 


/-,78        CASES  m  THE  SUPKEME  COURT. 


Wynhamer  v.  The  People. 


position  that  this  statute  does  at  the  outset,  in  its  first  enacting 
''lause,  usurp  power  and  assume  to  do  that  which  is  not  within 
the  province  of  the  legisLxture  to  do,  and  to  which  the  general 
grant  of  the  legislative  power  in  the  constitution  does  not  extend ; 
our  next  position  is  that  this  statute,  both  in  its  prohibitions 
and  its  penalties,  is  in  conflict  with  the  letter  and  spirit  of  those 
provisions  of  the  state  and  national  constitutions  having  foi 
their  object  the  pr^^tection  of  personal  and  property  rights,  and 
restraints  upon  state  legislation. 

I.  The  law  divests  the  plaintitT  in  error  and  all  other  owners 
of  liquor  in  this  state  of  their  vested  rights  in  their  property 
which  thev  had  at  the  time  of  the  law  taking  effect,  and  ia 
therefore  in  conflict  Avith  the  provision  of  the  constitution  which 
provides  that  no  citizen  shall  be  deprived  of  his  property  with- 
out due  process  of  law.  (1.)  That  intoxicating  liquor  is  prop- 
erty, hardly  needs  an  argument  to  show.  It  has  all  the  elements 
of  property,  and  has  been  so  considered  for  hundreds  of  years, 
and  it  is  so  determined  by  courts,  and  this  statute  in  question, 
it  will  not  be  controverted.  (2.)  The  prohibiting  of  the  sale 
of  this  property,  or  the  keeping  of  it  for  sale,  is  to  the  plaintiff  in 
error,  and  all  manufacturers  and  dealers  in  this  article,  depriv- 
ing them  of  their  vested  rights  therein,  (see  1  Leiher^s  Ethics, 
113,  114,  210,  211.  Reese's  Enci/clopcedia,  title  property. 
2.  Kent's  Co7n.  1th  ed.  p.  377.  2  Bouvier's  Institutes,  442.) 
The  right  of  sale  and  disposition  is  one  of  the  principal  elements 
of  the  rights  of  property  in  an  article.  Aside  from  the  excep- 
tions, this  act  provides  the  liquor  shall  not  be  sold  to  any  body 
hjany  body,  or  for  any  purpose  whatsoever.  It  shall  not  have 
any  vendible  quality  or  exchangeable  value.  This  is  as  much 
'u  deprivation  of  property  as  if  the  owner's  possession  was  di- 
r.lted.  But  the  denunciation  does  not  stop  with  the  prohibi- 
':'.:n  of  the  sale.  The  act  further  provides  that  the  liquor  shall 
•:•:.  ■■  )Z  kept  for  sale  or  given  away,  or  kept  to  be  given  away,  or 
k:.  )t  c.i  all,  (§  1st ;)  so  that  qilthough  five  minutes  before  12  o'clock 
ac  L!-')x'j.  July  3d,  the  liquor  of  the  plaintiff  in  error  was  lawful 
•DroDevtv  to  keep  and  vend,  five  minutes  after  12,  the  liquor  was 
•'If'  ;•  .:s7fy,  it  could  neither  be  sold,  given  away  or  kept.  It  was 


NIAGARA— SEPTEMBEE,  1855.  579 


Wynhamer  v.  The  x  jople. 


declared  to  be  a  nuisance,  and  courts  were  ordered  to  confiscate 
it,  thieves  were  permitted  to  steal  it,  and  violence  to  destroy  it, 
without  wrong  and  without  redress  ;  and,  (4.)  So  far  as  the  lair 
affects  property,  owned  at  the  time  of  its  taking  effect  as  a  law, 
it  does  all  this  without  any  "  process  cf  law"  whatever.  This 
must  be  obvious  to  every  mind.  Whether  the  amount  of  intox- 
icating liquors  held  by  dealers  and  manufacturers  on  the  3d  of 
July  last,  was  five  million  dollars  worth,  as  some  have  contend- 
ed, or  fifty  million  dollars  worth,  which  is  more  near  the  truth, 
the  owners  thereof,  at  the  manufactories,  warehouses,  stores, 
groceries,  taverns,  bars  and  shops,  had  that  amount  of  vested 
rights  of  property  in  that  liquor.  The  moment  sections  1st, 
4th  and  25th  of  this  law,  spoke  by  authority,  those  vested  rights 
of  property  in  those  liquors,  thus  lawfully  held,  Avere  iyistan- 
taneoiisly  destroyed,  and  that  before  any  "process  of  law'" 
whatever  could  begin  to  be  had  ;  and  as  to  such  liquors  thus 
made  contraband  and  confiscate  all  that  the  "process  of  law" 
provided  for  by  the  statute  could  possibly  effect,  would  be  to 
find  the  liquor  and  execute  the  sentence  or  edict  of  confiscation 
which  the  law  had  already  pi'onoimced. 

II.  This  law  violates  that  provision  of  the  constitution  which 
declares  private  property  shall  not  be  taken  for  public  use,  with- 
out just  compensation.  (1.)  This  law  takes  the  property.  It 
claims  to  devote  it  to  destruction,  for  the  public  good.  If  it  is 
not  for  public  use,  then  it  may  not  be  touched  at  all.  But  if 
taken  at  all  it  can  only  be  on  compensation  paid.  (2.)  Destruc- 
tion, or  any  diminution  of  private  property^  is  as  much  a  taking 
within  this  provision  of  the  constitution  as  if  kept  for  public 
use.  {Stevens  v.  Middlesex  Canal,  12  Mass.  Rep.  466. 
16  Pick.  431.) 

III.  This  act,  by  several  of  its  provisions,  does  in  effect  as- 
sume to  declare  and  make  all  intoxicating  liquors  (save  the  excer- 
tions)  and  the  trade  and  traffic  in  them,  r^  public  nuisance.  Aaa 
indirectly  it  subverts  and  destroys  the  trade  and  businerjc  ,' ' 
manufacturing  malt  and  distilled  liquors  in  this  state,  witu  7X 
the  property,  materials  and  labors  incident  thereto.  SoC.-i  \. 
1st  prohibits  the  business ;  section  4th  makes  it  a  misJcj:.o^ 


/;«0  CASES  IN  THE  SUPREME  COURT. 


Wynhimer  v.  The  People. 


or,  and  adjudges  a  forfeiture  ;  section  6th  provides  for  a  pro 
ces3  of  search  and  seizure,  and  arrest  of  the  suspected  party, 
on  probable  suspicion.  The  7th  section  prohibits  a  defense  l>y  a 
claimant  without  an  oath  cf  innocence.  The  14th  section  packs 
the  jury.  The  10th  section  executes  the  legislative  sentence 
of  destruction.  The  17th  section  reverses  the  rules  of  evi- 
dence, and  presumes  guilt  instead  of  innocence.  The  25th  sec- 
tion declares  the  property  to  be  a  public  nuisance.  Thus  is  a 
trade  and  a  business,  and  an  article  which  by  the  common  law 
of  the  country  at  the  time  of  the  adoption  of  our  first  constitu- 
tion and  immemorially  before,  was  tiot  a  nuisance,  but  a  legal 
and  legitimate  business  and  property,  declared  and  made  a 
nuisance,  and  destroyed  by  legislative  edict,  and  this  too  when 
no  change  has  taken  place  in  the  trade  or  the  article,  in  any 
way  altering  its  character,  but  only  a  change  of  opinion  in  the 
legislators.  Thus  are  the  life  long  habits  and  traditions  of  a  whole 
people  sought  to  be  changed  by  force  and  violence  in  one  night 
by  a  legislative  pronunciamento.  and  which  it  is  insisted  is  in 
conflict  with  those  provisions  of  the  state  constitutions,  which 
declare  the  "  liberty"  of  the  citizen  shall  not  be  taken  away 
without  "due  process  of  law,"  and  that  no  member  of  this 
state  shall  be  disfranchised  or  deprived  of  any  right  or  privilege, 
secured  to  any  citizen,  unless  by  the  law  of  the  land,  and  judg- 
Tiient  of  his  peers.  (1.)  The  term  "law  of  the  land"  and  "due 
process  of  law,"  do  not  mean  the  statute  which  works  the  for- 
feiture ;  for  otherv/ise  it  would  make  the  constitution  read — no 
man  shall  be  deprived  of  his  property  or  liberty  or  franchise, 
without  due  process  of  iarr,  unless  the  legislature  pass  a  law  to  do 
it.  This  would  be  no  limitation  at  all  upon  the  legislative  pow- 
er. (4  Hill,  146.  3  Storj/  on  the  Constitution,  661.  2  Kent's 
Com.  13.  2  Coke's  Institutes,  50,  51.)  (2.)  Although  the 
'prohibitory  law  provides  for  a  kind  of  process  and  trial,  yet 
-.''at  is  only  to  determine  whether  or  not  any  accused  person 
jr,8  or  nc-j  kept  or  sohl  and  to  find  and  destroy  the  article 
';/''v<''i  the  law  nad  by  its  provisions  made  contraband.  But  so 
.V  ","  the  divesting  any  right,  which  a  citizen  might  before  have 
"■ .  'tIdw  the  business  cf  sellings  or  any  right  of  property  which 


KIAGAR  A— SEPTEMBER,  1855.  5g| 

Wynhamer  v.  The  People. 

he  before  had  in  liquor,  which  he  does  keep  for  sale  or  had  on 
hand  in  his  store  for  sale,  on  the  morning  of  July  4th,  it  is  clear 
the  statute  itself,  by  its  own  power^  and  without  any  process 
trial  or  proceeding  whatever,  divests  and  destroj's  these  i-ights, 
(if  any.)  (3.)  The  constitutional  provisions  as  to  "  liberty." 
"property"  and  "franchises"  of  a  citizen,  were  taken  from 
" magna  charta,"  and  the  "  bill,"  and  "petition  of  rights"  in 
England,  and  these,  with  the  other  kindred  provisions  in  our 
constitution,  constitute  what  in  this  country  are  the  "bills"  or 
"declarations  of  rights"  of  the  citizen.  They  are  the  protec- 
tions equally  of  social,  political  and  'personal  liberty.  They 
are  to  be  largely  and  liberally  expounded.  In  the  language  of 
the  supreme  court  of  the  United  States,  (3  Dallas.  310,)  "  Not 
a  particle  of  them  should  be  shaken,  not  a  pebble  removed ;  in 
novation  is  dangerous,  one  encroachment  leads  to  another,"  &c. 
{See  Story  on  the  Constitution,  §  1865.  1  Kent's  Com.  led. 
24,  p.  607.)  (4.)  These  provisions  of  our  constitution,  v.'hen 
thus  expounded,  cannot  be  limited  to  the  mere  technical  and 
verbal  meaning  of  the  words  used.  The  '•  liberty"  meant  by 
the  constitution,  is  not  mere  absence  from  imprisonment.  The 
"privileges"  and  "franchises"  spoken  of,  are  not  merely 'privi- 
leges to  vote  and  hold  oflfice.  But  those  provisions  extend  fur- 
ther ;  they  include  the  freedom  of  the  citizen  in  his  actions  and 
movements.  They  comprehend  that  right  to  the  "  pursuit  of 
happiness,"  declared  and  asserted  in  our  declaration  of  inde- 
pendence. They  extend  to  protection  of  the  citizen  in  his  em- 
ployments, in  his  freedom  to  earn  a  support  by  the  ordinary 
and  usual  trades  and  business  ;  the  long  recognized  modes  of 
industry  in  the  country.  (See  Cokeys  Cojnmentaries  upon 
Magna  Cliarta,  2  Inst.  ch.  29,  47,  48.)  (5.)  There  is  much 
reason  that  these  constitutional  guaranties  should  extend  to  the 
business  pursuits  of  men.  It  is  quite  as  important  that  the 
trade  and  business  which  a  man  spends  years  to  learn,  and  has 
made  valuable  to  him  by  years  of  labor  and  experience,  and  tho 
only  business  which  he  is  qualified  to  follow,  should  be  protect- 
ed from  despotic  power,  as  that  the  property  acquired  i'V 
Buch  business   should  be  protected.     Chief  Justice  Ruffin,  in 


582  CASES  IN  THE  SUPREilE  COURT. 


Wyuhamer  v.  The  People. 


iih  Devcreux.  says  :  "  He  is  deprived  of  an  employmtnt,  the 
immediate  source  of  his  livelihood,  the  preparation  for  which 
has  been  the  great  business,  it  may  be,  of  his  life,  to  which 
he  has  served  a  long  apprenticeship,  and  to  which  lie  has  de- 
voted himself,  abandoning  other  lines  of  life  which  were  once 
open  to  his  free  choice.  True,  he  is  free  to  work  at  other  em- 
ployments, but  he  is  fit  for  none.  He  knows  but  this.  He  is  in 
the  situation  of  one  bred  to  the  agriculture  of  our  country,  to 
whom  the  legislature  should  say,  '  Till  the  ground  no  more ;  go 
and  spin  silk  or  weave  muslin.'  His  labor  is  not  the  subject 
of  conscription  ;  but  he  hangs  a  burden  on  himself,  because  the 
only  employment  to  which  he  is  competent  is  denied  him." 
(6.)  "  The  doctrine  of  this  statute  is,  that  the  legislature  may 
declare  a  property  or  business  to  be  a  nuisance,  whenever  a 
noxious  or  injurious  use  is  made  by  others  of  the  property,  or 
the  products  of  the  business.  This  the  legislature  cannot  do  ; 
if  they  may  do  so  as  to  intoxicating  liquor,  they  may  do  so  as 
to  all  other  business.  It  has  been  decided  the  legislature  can- 
not be  the  sole  judge  of  whether  a  purpose  for  Avhich  private 
property  is  taken,  be  or  not,  a  '  public  tise/  within  the  mean-; 
■ing  of'the  constitution."  (Tracy,  in  Bloodgood  v.  The  Mohawk 
and  Hudson  R.  R.,  18  Wend.  9.)  So  the  legislature  cannot 
by  declaring-  a  river  to  be  navigable,  make  it  so,  and  th"us  de- 
prive riparian  proprietors  of  their  rights.  (16  Ohio  Rep.  540.) 
lY.  The  law  is  also  in  conflict  with  the  provision  that  no 
man  shall  be  twice  put  in  jeopardy  of  life  or  limb,  &c.,  for  the 
same  offense.  (Sec.  8.)  It  authorizes  an  appeal  by  and  on  tho 
part  of  the  prosecution  upon  a  verdict  of  acquittal  by  a  jury, 
whereby  the  acquittal  may  be  reversed,  and  the  defendant  again 
tried  for  the  same  offense,  and  that  too,  without  the  complain- 
ant being  required  to  give  any  security  whatever.  While  the 
defendant's  right  of  appeal  is  conditioned  upon  his  giving  exces- 
sive security,  not  only  to  pay  and  abide  by  the  judgment  ren- 
dered against  him  :  but  also  to  furnish  sureties  that  he  will  not 
commit  any  other  offenses  under  the  act,  and  which  sureties 
dhall  undertake  to  pay  all  fines   that  he  may  incur  in  othei 


NIAGARA— SEPTEMBER,  1855.  o^;j 

Wynhamer  v.  The  People. 

cases.     Thus  rendering  it  next  to  impossible  for  a  poor  man  tc 
have  an  appeal. 

V.  The  law  deprives  a  defendant  of  right  to  a  "  trial  Ly 
jury,"  and  to  be  convicted,  if  at  all,  by  "judgment  of  his  peers."' 
It  is  clear  that  the  act  may  be  so  construed  as  to  deprive  the 
defendant  of  his  election  to  give  bail,  and  compel  him  to  go  tc 
trial  before  the  tribunal,  created  by  section  5  of  the  act,  anl 
with  a  jury  of  six  only,  while  the  constitution  secures  to  hiir. 
a  trial  by  twelve  jurors,  according  to  the  common  law.  {Ophi- 
ion  of  Justice  Parker,  in  People  v.  Kennedy,  2  Kern.  19c. 
Opinion  of  Justice  Dean,  in  People  v.  Johnson.)  But  even 
if  he  may  have  his  election,  and  thus  secure  a  trial  before  a 
jury  of  twelve  men,  he  is  still  deprived  of  trial  by  ^'jury  of 
his  peers,"  within  the  meaning  of  the  constitution.  The  tribu- 
nal which  the  constitution  secures  to  the  accused,  is  a  "jury,"' 
cmpanneled,  drawn  and  constituted  in  accordance  with  the  com- 
mon laAV,  and  the  statutes  in  force  at  the  time  the  constitution 
was  adopted.  By  this  statute,  the  jurors  to  try  accusations 
under  that  act,  are  packed  by  a  new  and  arbitrary  disqualinca- 
tion  unknown  to  the  common  law,  ami  not  applicable  to  any 
other  criminal  trial  or  proceeding.  If  the  legislature  may  ex- 
clude from  the  jury  box  a  person  qualified  as  a  juror  by  tbc 
general  law  of  the  land,  on  mere  suspicion  and  v/ithout  any 
evidence  at  all  that  he  has  been,  or  is  guilty  of  a  like  offense, 
with  the  person  on  ti-ial ;  if  they  may  make  arbitrary  disquali- 
cations  against  particular  persons  or  classes,  in  one  case, 
they  may  do  so  in  all,  and  might  require  the  defendant  to  take* 
his  trial  before  the  "  Carson  League."  He  is  entitled  -jo  s  'rral 
by  his  "  peers."  [See  opinion  of  Pitman,  J,  1  Curtis-  .'<:.»>, 
335.) 

yi.  The  law  violates  that  provision  of  the  constitutioii  av-Itr 
ing  that  a  man  shall  not  be  required  to  give  evidence  agiil:i«if 
himself.  Section  12  compels  a  person  arrested  for  intGxicrjj'.cix 
to  swear  where  he  obtained  his  liquor  ;  section  7  compels  a  ir-.ap 
to  swear  to  his  innocence,  before  he  can  put  the  comy)lf^i:;i.ra 
upon  proof  of  guilt,  and  section  16  gives  an  accused  }\7^T'">r:» 
^he  option  o^  declining  to  criminate  himself,  and  by  cJu  awxig  i,v 


p,QA  CASES  IN  THE  SUPREME  COURT. 


Wynhamer  v.  The  People. 

rxccmplish  by  his  silence  just  what  and  only  what  he  could  dc 
if  he  answered  against  himself. 

VII.  The  act  violates  the  provisions  against  demanding  "ex- 
;'c:sive  bail,"'  "  imposing  excessive  fines,"  and  inflicting  cruel  and 
'•'•  iinusual  punishments,"  and  so  it  establishes  new  and  inferior 
courts  with  new  jurisdictions  in  places  other  than  cities,  and 
v.'hich  do  not  proceed  according  to  the  common  law.  [Const,  art. 
t),  5  14.)  This  act  also  clothes  officers  and  inferior  and  irre- 
cpcnsible  magistrates  with  new  and  unusual  powers.  It  vests  the 
ifirest  grade  of  ministerial  officers  with  arbitrary  and  dangerous 
powers,  which  can  ,be  exercised  without  let  or  hindrance,  upon 
the  mere  discretion  of  the  officers.  By  sections  5,  6,  13,  10,  the 
inferior  magistrates,  named  in  the  5th  section,  are  authorized  to 
.impose  fines  without  limit,  and  forfeit  and  destroy  property  to 
nny  amount  from  $10  to  a  million,  and  to  inflict  long  terms  of 
imprisonment.  All  of  which  is  contrary  to  the  spirit  and  implied 
inhibitions  contained  in  the  6th  article  of  the  constitution.  And 
so  ssction  12  of  this  statute  forces  upon  constables  and  police 
oSGcera  the  exercise  of  judicial  and  discretionary  powers  of  arrest 
and  interference  with  the  persons  and  property  of  citizens,  with- 
out warrant,  complaint  or  process,  to  an  extent  unknown  and 
uoheard  of  ever  before  in  a  free  country,  and  truly  alarming  in 
view  of  the  tendency  of  all  power  to  abuse.  By  this  12th  sec- 
tion the  officer  is  compelled  to  arrest  all  and  every  person  whom 
he  T2aj  determine  to  be  engaged  in  violating  the  act,  and  to 
seize  all  property  Avhich  he  may  determiHe  is  kept  contrary  to 
the  act,  and  he  may  arrest  and  imprison  every  person  whom  he 
inv.Y  cletsrmine  to  be  intoxicated  in  any  place  whatsoever,  whether 
gir:';y  cf  any  offense  or  not.  And  by  the  14th  section  the  offi- 
cer xC  impliedly  protected  against  the  consequences  of  any  malice, 
ba'i'  f-'ith,  or  want  of  probable  cause,  which  may  have  prompted 
liV:  ".-jnduct.  And  by  section  20,  if  the  officer  err  on  the  side  of 
nir".;y,  he  himself  is  subject  to  entire  and  irretrievable  ruin. 

J I  is  insisted  as  another  general  proposition  that  this  statute, 
it.  ir.any  of  its  provisions,  is  in  conflict  with  those  provisions  in 
flj  a  Kip -frights  in  the  United  States  constitution,  providing 
X''S  yL.2  Si'vuhy  of  private  rights,  and  which  provisions  are  also 


OTAGARA— SEPTEMBER,  1855.  5g5 


AVj-nhamer  v.  The  People. 


incorporated  into  the  constitution  of  this  state.  (*S'ee  art.  5  of 
Amendments  to  the  Constitution.)  But  it  also  violates  thot,*^ 
provisions  of  the  United  States  constitution,  which  are  intended 
to  pn;tect  the  people  from  the  annoyance  of  spies,  and  to  secure 
their  houses,  persons  and  premises  from  unreasonable  searches 
and  seizures.  And  also  those  provisions  of  section  10  of  the  li^t 
article,  which  have  for  their  object,  to  rest7'ai7i  state  legislation 
from  any  undue  interference  with  the  powers  conferred  upon  th<*. 
national  government,  and  from  passing  laws  inconsistent  with 
the  nature  of  republican  and  free  institutions. 

I.  The  law  is  to  all  intents  and  purposes  a  '•■  bill  of  attain- 
der.^'' which,  as  used  in  our  constitution,  includes  "  bills  of  pains,'' 
and  "  penalties."  In  England  a  bill  of  attainder,  as  technically 
understood,  was  such  only  as  deprived  of  life.  In  our  constitu- 
tion it  has  a  more  extended  signification,  and  all  laws  which  as- 
sume of  themselves  to  exercise  judicial  magistracy,  either  in  the 
deprivation  of  life  or  confiscation  of  property,  are  bills  of  attain- 
der. {Fletcher  v.  Peek,  6  Cranch,  87,  138.  2  Cond.  U.  S' 
Rep.  322.)  And  so  a  bill  of  attainder,  as  thus  defined,  is  not 
necessarily  confined  to  individual  victims.  It  may  designate  its 
objects  by  classes  or  by  a  general  description,  fitting  a  multitude 
of  persons.  In  either  mode  it  is  equally  liable  to  moral  and  con- 
stitutional censure.  (1  Dana.  510.)  The  statute  under  con- 
sideration answers  to  the  definition  of  a  "  bill  of  attainder"  as 
above  given.  It  confiscates  property  of  individuals  and  classes 
without  trial,  judgment  or  hearing.  The  proceedings  required, 
and  provided  for  by  the  statute  are  (as  has  been  before  shown) 
in  no  sense  a  judicial  proceeding  to  determine  whether  intoxi- 
cating liquors  kept  for  sale,  or  kept  at  all,  shall  or  not  be  for- 
feited. The  judicial  proceedings  provided  for  by  the  act  are 
themselves  hnt  the  result  of  a  forfeiture  theretofore  incurred, 
and  a  divestiture  of  title  whifth  had  theretofore  taken 
place.     (1  Dana,  519.     Paley's  Moral  Philosophy.) 

II.  This  statute  is  an  "  ex  post  facto  law,"  in  a  sense  more 
odious  if  possible  than  any  definition  which  harf  ever  been  given 
of  that  term.  (1.)  It  is  a  statute  making  acts  criminal,  which 
in  their  nature  are  not  criminal,  and  which  for  all  time  before 

Vol.  XX  74 


jS6  cases  in  the  supreme  court. 


AVyiihamer  v.  The  People. 

had  been  sanctioned  by  the  common  law  and  the  statute.  (2.)  It 
not  only  makes  acts  criminal,  which  were  not  criminal,  when 
done,  but  it  declares  a  man  a  criminal  for  doing  no  act  at  all, 
(§§  1,  4,)  or  an  omission  to  do  any  act  expressly  required  by  the 
statute.  A  man  is  l)y  this  statute  made  a  criminal  for  lefAing 
his  own  property  alone.  (3.)  And  so  the  statute  requires  less 
evidence  to  convict  of  doing  an  act,  than  was  before  required  in 
like  cases. 

III.  This  statute  "  impairs  the  obligation  of  contracts."  {See 
Story  on  the  Const.  §§  1374  to  1399  inclusive  ;  1  Kenfs  Com. 
1th  ed.  p.  455  to  466.)  (1.)  It  has  been  held,  in  regard  to  this 
provision  of  the  constitution,  that  the  inhibition  extends  as  Avell 
to  contracts  executed  as  executory  contracts,  and  to  preserve 
and  secure  rights  acquired,  as  well  as  obligations  assumed. 
{Smith  on  Stat.  §  250.)  (2.)  Also  it  is  said  that  although  this 
provision  of  the  constitution  does  not  aifect  the  power  of  the 
legislature  to  deal  with  the  remedies  for  the  enforcement  of  ob- 
ligations or  protection  of  the  rights  secured  by  the  contract,  yet 
if  while  pretending  to  deal  with  the  remedy,  it  so  legislates  as 
in  any  degree  to  aifect  the  right  or  impair  the  obligation,  such 
legislation  is  void.  {Smith  on  Stat.  §  255.  Green  v.  Riddle, 
8  Wheat.  1.  Branson  v.  Kinzie,  1  Howard,  211.)  (3.)  And 
so  it  has  been  held  that  the  laws  in  force  where  the  contract  was 
made,  at  the  time  it  was  made,  enter  into  and  become  a  part  of 
the  contract,  as  much  as  if  they  were  expressly  set  forth  in  its- 
stipulations.  {Smith  on  Stat.  §258.  McCrackenv.  Hayicard, 
2  How.  608.  (4.)  It  has  also  been  decided  that  this  provision 
of  the  constitution  prohibits  the  state  legislatures  passing  any 
law,  divesting  a  vested  right,  whether  acquired  under  a  contract 
between  party  and  party  or  by  a  charter  from  governm.ent ;  and 
tliat  the  restriction  as  to  vested  rights  extends  to  rights  of  every 
nature,  arising  or  resulting  from  contracts,  either  verbal  or 
v/ritten,  express  or  ijnpUed.  And  so,  whether  the  x'ights  arise 
from  the  stipulation  of  the  parties,  or  accrue  by  tho  operation 
of  the  laiD,  which  is  a  part  of  the  contract.  And  that  this  re 
striction  must  be  considered  as  rendering  void  any  statute  re 
trospective  in  its  operation  so  far  as  it  affects  vested  righti> 


NIAGARA— SEPTEMBER,  1855.  537 

Wynhamer  v.  The  People. 

{Smith  on  Statutes,  §§  261,  264.     Dartmouth  College  case,  4 
Wheat.  518.     Nelson  v.  Allen,  1  Yerg-er,  366.     A^ew  Jersey 
V.   PFi/.ww,  7  Cranch,   164.     Oshorn  v.  Humphrey,  7  -Oay, 
885.    Atwater  v.  Woodbridge,  6  Conn.  223.    Lewis  v.  Brack 
enridge,  1  Black/.  112.)     It  follows  therefore :  1st.  As  to  all 
intoxicating  liquor  in  the  hands  of  manufacturers  and  dealers  at 
the  time  of  the  prohibitory  act  going  into  eflFect,  and  which  had 
been  manufactured  or  purchased  by  them  for  sale  again — they 
had  a  vested  right  to  re-sell  the  article,  Avhich  right  arose  both 
b}'^  contract  and  by  operation  of  law.     1.  By  express  contract : 
for  when  a  dealer  in  any  kind  of  property  purchases  of  another 
an  article  or  quantity  of  the  property  in  which  he  traffics,  he 
contracts  and  bargains  for  all  the  rights  and  incidents  which  at- 
tach to  the  property  while  owned   by  the  vender.     And  the 
vender  is  considered  in  law  to  have  expressly  granted  and  con- 
veyed to  his  vendee  those  rights  and  incidents.     The  most  im- 
portant of  which,  and  indeed  the  only  one  of  any  use  and  value 
whatever  to  a  vender  thus  circumstanced,  is  the  right  0/  re-sale. 
2.  Such  rights  of  re-sale  attached  to  the  property  as  an  insepa- 
rable incident  when  purchased  by  the  dealer  by  operation  of  law. 
The  law  as  it  then  was  gave  to  the  dealer  the  absolute  rio;ht  to 
use,  keep  and  sell.     That  law  became  a  part  of  Me  contract,  and 
vested  the  right  thus  acquired  in  the  dealer.     And  that  right 
of  sale  so  vested,  the  '•  higher  law"  of  the  constitution  secures 
and  protects,  inviolable  from  state  interference.     It  is  a  right 
acquired  by  contract,  the  obligation  of  which  is  to  respect  and 
sustain  the  ricjht.  and  the  state  law  that  touches  either  is  void. 
In  conclusion,  as  to  this  statute,  it  is  submitted  that  the  act 
for  the  prevention  of  intemperance,  pauperism  and  crime,  while 
it  proposes  to  attain  and  accomplish  a  good  and  a  worthy  object, 
does,  nevertheless,  manifest  a  determined  purpose  in  the  pursuit 
of  that  object,  if  necessary,  to  violate  the  fundamental  guaran- 
tees of  civil  liberty,  subvert  the  constitution  and  usurp  despotic 
power.     When  it  is  met  by  constitutional  barriers,  it  seeks  to 
avoid  them  by  a  series  of  transparent  evasions.     Pretending  to 
respect  property,  it  destroys  it  indirectly,  by  depriving  it  of  all 
its  incidents  and  uses ;  pretending  to  respect  liberty  and  per- 


588  CASES  IN  THE  SUPREME  COURT. 

Wynhanier  v.  The  Teople. 

sonal  security,  it  proscribes  a  large  class  of  citizens,  and  places 
their  rights  of  person  and  property,  entirely  at  the  mercy  of  any 
man  in  the  community,  who  from  good  or  bad  motives  may  choose 
to  destroy  them.  It  claims  the  right,  and  usurps  the  power  to 
do  all  manner  of  evil  in  order  "  that  good  may  come."  The  en- 
tire scheme  of  measures  proposed  by  the  law  are  vicious,  and 
should  not  be  upheld  by  the  courts. 

A.  Sawin,  (district  attorney,)  for  the  defendants  in  error. 
The  oidy  question  presented  by  the  bill  of  exceptions,  (apart 
from  matters  of  form,)  involving  the  validity  or  construction  of 
the  prohibitory  liquor  law,  is  that  presented  by  the  rejection  of 
the  proof  oifered  by  the  defendant,  and  rejected  by  the  court 
below,  "  that  the  liquor  sold  by  the  defendant  was  liquor  im- 
ported into  this  state  from  foreign  countries,  under  and  in  pur- 
suance of  the  revenue  laws  of  the  United  States;  that  the 
defendant  purchased  such  liquor  from  the  importer  in  the  im- 
ported packages,  and  that  the  same  was  drawn  from  such  pack- 
ages, and  sohl  to  the  persons  and  at  the  times  proved  by  the 
witnesses  for  the  people."  All  the  counts  in  the  indictment  are 
for  illegal  ftales  in  quantities  less  than  one  pint,  and  not  for 
giving  away  or  keeping  with  intent  to  sell.  The  proof  showed 
the  liquor  was  sold  at  the  defendant's  bar  in  quantities  less 
than  one  pint,  and  was  drank  on  his  premises.  The  1st  sec- 
tion of  the  act  for  the  "  prevention  of  intemperance,  pauperism 
and  crime,"  enacts  substantially  that  intoxicating  liquor  shall 
not  be  sold,  except  as  thereinafter  provided  for  medical  pur- 
poses. The  22d  section  declares  all  distilled  liquors  (and  of 
course  brandy)  to  be  intoxicating.  The  finst  section  also  ex- 
cepts ^'■liquor  the  right  to  sell  which,  in  this  state,  is  given  by 
any  law  or  treaty  of  the  United  States.''^  There  is  no  pre- 
tense that  the  brandy  in  question  was  sold  by  the  defendant 
under  the  provisions  of  the  second  section. 

First.  There  is  no  law  or  treaty  of  the  United  States  giving 
the  right  to  the  importer  of  liquors,  or  any  other  person,  to  sell 
the  same  in  the  original  package  or  otherwise,  in  this  state. 
I.  It  is  admitted  there  is  no  treaty  or  law  of  congress,  in  ex- 


NIAGARA— SEPTEMBER,  1855.  tjgg 


Wynhamer  v.  The  Peoij'e. 


press  words,  authorizing  the  importer  of  brandy  or  distilled 
spirits  or  wine,  upon  payment  of  duties  under  the  revenue  laws 
of  the  United  States,  to  sell  the  same.  The  acts  of  congress 
bearing  on  the  question  are  as  follows :  Tlw  first  act  of  regula- 
tion of  imports,  passed  March  2, 1799.  (1  U.  S.  ^tat.  at  Large, 
p.  701,  §  103,)  prohibits  the  importation  of  distilled  spirits  in 
less  quantities  than  ninety  gallons.  By  act  of  2d  March,  1829, 
and  act  of  27th  February,  1830,  which  are  now  in  force,  brandy 
may  be  imported  in  casks  of  a  capacity  of  not  less  than  fifteen 
gallons.  The  last  tariff  act,  passed  30th  July,  1846;  (9  Stat,  at 
Large,  schedule  A,  p.  44,)  imposes  a  duty  upon  brandy  of  one 
hundred  per  centimi,  ad  valorem. 

II.  The  constitution  of  the  United  States  and  laws  of  con- 
gress authorizing  the  importation  from  foreign  countries  of  dis- 
tilled spirits  and  imposing  duties  thereon,  do  not,  &y  itnpUcation, 
give  the  right  of  sale  of  the  same  in  this  state  to  the  importer 
or  any  body  else.  (1.)  There  has  been  no  adjudication  of  the 
supreme  court  of  the  United  States  to  that  effect.  The  case  of 
Brmvn  v.  The  State  of  Maryland,  (12  Wheat.  419.)  decided  in 
1827,  arose  under  a  slate  law  prohibiting  importers  from  selling 
"  without  taking  out  a  license  for  which  they  shall  pay  fifty 
dollars^''  and  Chief  Justice  Marshall  held  the  act  repugnant  to 
that  clause  in  the  constitution,  which  declares  "that  no  state 
shall  hiy  any  imposts,  or  duties  on  imports  or  exports."  The 
question  was  one  of  taxation.  Afterwards,  in  1847,  the  supreme 
court  of  the  United  States  held  that  the  Liws  of  New  Hamp- 
shire, Massachusetts  and  Rhode  Island,  regulating  the  sale  of 
intoxicating  liquors,  were  not  inconsistent  with  the  federal  con- 
stitution or  acts  of  congress  under  it ;  and  in  doing  so,  all  the 
judges  expressly  held  one  important  portion  of  the  opinion  of 
Chief  Justice  Marshall  in  the  above  case  to  be  obiter,  and  three 
of  them.  Justices  Daniel,  Woodbury  and  Grier,  substantially 
adjudged  that  so  much  of  Chief  Justice  Marshall's  opinion  in 
the  case  of  Broica  v.  Maryland,  as  held  that  the  state  govern- 
ments could  not  prohibit  sales  by  the  importer  in  the  original 
jiackages,  to  be  "not  the  point  settled  or  the  substantial  rea- 
son for  it."     {See  5  Howard,  505  to  633.)     "  It  is  clear,"  says 


590  OASES  IN  THE  SUPREME  CODliT. 

Wynhamer  v.  The  Pooi)]o. 

Chief  Justice  Taney,  {Id.  574,)  "  that  the  power  of  congress 
over  this  subject  does  not  extend  further  than  the  regulation  of 
commerce  with  foreign  nations  and  among  tlie  several  states  ; 
and  beyond  those  limits  the  states  have  never  surrendered  their 
poAver  over  trade  and  commerce,  and  may  still  exercise  it,  free 
from  any  controlling  power  on  the  part  of  the  general  govern- 
ment. Every  state  therefore  may  regulate  its  ovm  internal 
trajf},c,  according  to  its  own  judgment,  and  npon  its  own  views 
of  the  interest  and  loell  being  of  its  citizens.''' 

III.  But  even  if  congress  possess  the  right  under  their  power 
to  regulate  commerce,  to  authorize  the  importer  of  foreign  liquors 
to  sell  the  same  in  this  state,  that  power  has  not  been  exercised, 
and  therefore,  according  to  the  unanimous  opinion  of  the  justices 
of  the  supreme  court  of  the  United  States,  in  the  above  cited 
New  Hampshire  case,  the  legislation  in  this  state  is  valid.  It 
follows,  therefore,  that  no  construction  can  be  given  to  the  ex- 
cepting clause  under  consjderation,  that  would  render  the  proof 
oft'ered  material  ;  in  other  words,  there  is  no  liquor  "  the  right 
to  sell  which  in  this  state  is  given,"  either  in  express  terms  or 
by  implication,  by  any  law  or  treaty  of  the  United  States.  The 
court  will  probably  see  from  the  examination  of  the  other  points 
presented  below,  that  the  decision  of  the  first  proposition  is  of 
no  practical  consequence  in  this  case,  yet  it  is  peculiarly  fit 
that  the  bar  and  the  courts  sliould  upon  all  proper  occasions, 
when  satisfied  the  precise  question  presented  by  the  first  point 
is  yet  open  for  argument  and  discussion  in  the  supreme  court 
of  the  United  States,  maintain  the  right  of  every  state  "  to 
regulate  its  own  internal  traffic  according  to  its  own  judgment, 
and  upon  its  own  views,  of  the  interest  and  well  being  of  its 
citizens." 

Second.  Assuming,  however,  (as  the  legislature  undoubtedly 
<lid,j  that  the  federal  judiciary  have  given  such  a  construction 
to  the  law  of  congress  as  authorizes  the  importer  of  brandy  t'> 
sell  it  within  this  state  in  the  original  cask  or  package,  (not  less 
than  fifteen  gallons,)  then  the  brandy  charged  in  the  indictment 
and  proven  to  have  been  sold  by  the  defendant,  at  his  bar,  in 
quantities  less  than  one  pint,  and  drank  on  his  premises,  is  not 


NIAGARA-  -SEPTEMBER,  1855.  59  \ 

Wyrihamer  v.  The  People. 

f.he  "  liquor'^  named  in  the  last  clause  of  said  first  section,  with- 
in the  intent  and  meaning  of  the  exception. 

I.  Construing  the  clause  by  itself,  adopting  the  most  stringent 
rule  of  subtle  and  strict  construction,  ("the  letter  that  killeth 
instead  of  the  spirit  that  maketh  alive,")  it  is  submitted — 
(1.)  The  words  "  is  given" — the  present  tense,  clearly  limit  the 
operation  of  the  exception,  as  the  technical  words  in  an  indict- 
ment '•  then  and  there"  do — to  the  specific  liquor  charged  in  the 
indictment.  (2.)  The  words  "  is  give?},"  mean,  "  is  granted  in 
express  ternis.^^  (3.)  The  words  "  liquor  the  right  to  sell 
which  is  given  by,"  are  equivalent  to  the  following  words,  "  the 
sales  of  liquor  authorized  by."  (4.)  There  is  no  pretense  under 
any  construction  by  the  supreme  court  of  the  United  States,  or 
any  judge  thereof,  of  any  act  of  congress,  that  the  right  to  sell 
liquor  is  attached  to  or  floAvs  with  the  liquor.  "  The  right  to  sell 
Avhich,"  is  a  right  not  "given"  to  the  liquor  but  to  the  person. 

II.  But  if  there  is  any  doubt  as  to  the  meaning  of  the  ex- 
cepting clause,  such  a  construction  should  be  given  to  it  as  will 
put  in  force  the  intent  of  the  lawmakers,  which  can  be  done 
only  by  limiting  it  to  sales  of  liquor  in  the  original  packages  by 
the  importer.  This  can  be  done  in  the  applicatioiji  of  well  set- 
tled rules  for  the  construction  of  statutes,  ivilhoui  adding  to  or 
taking  frmn  the  whole  act  a  single  v^ord,  and  at  the  same  time 
give  weight  and  meaning  to  every  word  therein.  But  it  has 
been  argued  that  penal  statutes  should  be  construed  so  strictly, 
as  that  the  intent  of  the  legislature  should  not  be  diligently 
sought  out.  This  pestilent  dogma  has  no  foundation  in  princi- 
ple and  is  not  sustained  by  authority.  "However  true  it  may 
in  the  general  be,  that  penal  laws  are  to  be  construed  strictly, 
yet,  even  in  the  construction  of  them  the  intention  of  the  legis- 
lators ought  to  be  regarded."  {Bacon^s  Ahr.  tit.  Statute  ;  cases, 
Rkx  V.  Hodnet,  1  Durnf.  ^  East,  96 ;  Heydon^s  case,  3  Rep. 
7  ;  8  Mod.  65  ;  2  Atkins,  205.)  The  statute  declared  it  to  be 
treason  foi*  a  servant  to  kill  his  master.  The  court  held,  that 
applied  to  his  master's  wife.  Croke,  J.,  saying,  "Notwithstand- 
ing that  a  statute  which  increases  a  punishment  beyond  what  it 
was  at  the  common  law,  ought  not  to  be  extended  by  an  equi- 


592  CASES  IN  THE  SUPPwEME  COURT. 

Wynhanier  v.  The  People. 

table  construction,  yet  the  words  of  such  statute  ought  to  be 
construed  according  to  the  intention  of  the  makers  of  the  statute. 
So  in  the  sohlier's  case,  {Cro.  Car.  71.)  The  statute  making 
the  departure  of  a  soldier  from  his  captain  without  license,  fel- 
ony, it  was  held  b}'^  nine  judges  against  three  that  a  departure 
of  the  solilier  from  his  conductor,  was  within  the  meaning  of 
the  act.  That  a  penal  statute  when  made  for  the  public  service 
and  good  of  the  king  and  realm,  ouo;ht  to  be  construed  according 
to  the  intention  of  the  makers  of  the  statute.  So  in  Poulier^s 
case,  (11  Rep.  34,  35,)  it  is  said,  ''There  are  many  cases  in  our 
books  where  penal  statutes  have  been  construed  by  intendntent 
for  the  suppression  of  a  mischief,"  &.c.  Spencer,  justice,  in  de- 
livering the  opinion  of  the  court  in  the  case  of  Sickles  v.  Sharp 
(13  John.  497.)  says :  "  The  rule  that  penal  statutes  are  to  be 
construed  strictly  when  they  act  on  the  offender,  and  inflict  a 
penalty,  admits  of  some  qualification.  In  the  construction  of 
statutes  of  this  description,  it  has  often  been  held  that  the  plain 
and  manifest  intention  of  the  letijislature  ought  to  be  regarded. 
A  statute  which  is  penal  to  some  persons,  provided  it  is  benefi- 
cial generally,  may  be  equitably  construed.  Even  in  case  of 
felony,  the  courts  have  regarded  the  intention  of  the  legislature." 
A  statute  which  is  made  for  the  good  of  the  public,  ought,  al- 
though it  be  penal,  to  receive  an  equitable  construction.  (2  Bro. 
110.  Ill,  116.)  "  Yet  penal  statutes  are  taken  strictly  and 
literally,  only  in  the  point  of  defining  and  setting  down  they«c^ 
and  punishment,  not  in  words  that  are  but  circumstances  and 
conveyance  in  the  putting  of  the  case.  {Bacon^s  Maxi^ns,  51, 
58,  59.)  Chief  Justice  Marshall  says,  "  Although  penal  laws 
are  to  be  construed  strictly,  they  are  not  to  be  construed  so 
strictly  as  to  defeat  the  obvious  intention  of  the  legislature.'* 
(5  Wheat.  76.)  Woodworth,  justice,  in  delivering  the  opinion 
of  the  court,  in  the  case  of  The  People  v.  Bartoio,  (6  Coiven. 
293,)  says,  "  Although  a  penal  statute  is  to  be  construed  strictly, 
the  courts  are  not  to  disregard  the  plain  intent  of  the  legislature. 
Amone:  other  thins:s  it  is  well  settled,  that  a  statute  which  is 
made  for  the  good  of  the  public  ought,  although  it  be  penal,  t: 
receive  an  equitable  construction.     When  it  is  considered  that 


NIAGARA— SEPTEMBER,  1855.'       -  gg^ 

Wynhamer  v.  The  People. 

this  statute  [the  restraining  act]  was  intended  to  strike  at  an  ex 
isting  evil,  deemed  to  be  of  serious  injury  to  the  community,  it 
cannot  well  be  doubted  that  its  enactment  was  to  promote  the 
public  good."  Justice  Story,  in  1  Gallison^s  Rep.  118,  says : 
•'  We  are  obviously  bound  to  construe  penal  statutes  strictly, 
and  not  to  extend  them  beyond  their  obvious  meaning  by  strain- 
ed inferences.  On  the  other  hand  we  are  bound  to  interpret 
them  according  to  the  manifest  import  of  the  words,  and  to  hold 
all  cases  Avhich  are  within  the  words  and  mischief  to  be  within 
the  remedial  influences  of  the  statute  ;  and  this  is  what  I  un- 
derstand by  expounding  a  statute  liberally  as  to  the  offense." 
Again  in  3  Stimjier,  211,  says  the  same  judge  in  reference  to 
penal  statutes,  "  The  proper  course  is  to  search  out  and  follow 
the  intent  of  the  legislature,  and  to  adopt  that  sense  of  the  words 
Avhich  harmonizes  best  with  the  context,  and  promotes  in  the 
fullest  manner  the  apparent  policy  and  object  of  the  legislature.'' 
Justice  Woodbury.  (2  A^.  Hamp.  Rep.  195,)  says  :  "  A  statute, 
if  of  public  utility,  as  the  uniform  presumption,  should  be  so 
construed  as  to  effectuate  the  intent  of  the  makers.  The  inten- 
tion, to  be  sure,  is  to  be  gathered  from  the  language  and  subject 
matter  of  the  statute.  But  when  once  so  gathered,  it  is  no  less 
important  to  society,  and  no  more  severe  upon  the  offender  to 
enforce  it  in  penal  statutes  than  in  remedial  ones.  Without 
such  a  construction,  too,  this  class  of  statutes  become  almost  a 
dead  letter,  prosecutions  are  a  mockery,  and  malefactors  encour- 
aged." Chief  Justice  Parsons,  in  8  Pick.  370,  says,  (in  relation 
to  this  rule  that  penal  statutes  must  be  strictly  construed,)  "This 
did  not  exclude  the  application  of  common  sense  to  terras  mado 
use  of  in  the  act,  in  order  to  avoid  an  absurdity  which  the  legis- 
lature ought  not  to  have  been  presumed  to  have  intended. 
There  were  cases  which  shoAved  this,  although  precedents  were 
not   required   to    sustain    so  reasonable  a  doctrine."     {See  15 

Wend.  147.)     A  penal  statute  may  also  be  a  remedial  law  pe- 
nal  in  one   part    and  remedial   in    another.     (1   Wilson,  126. 

Donglas.9,  702.) 

The  foregoing  citations  furnish  precedents  (if  any  were  ne- 
cessary) for  the  application  of  the  good  old  rules  for  the  con- 
VoL.  XX.  "3:5 


594  CASES  iX  THE  SUPREME  COURT. 

Wynliamer  v.  The  People. 

struction  of  all  statutes,  to  the  act  for  the  suppression  of  intern 
perance,  though  it  be  called  a  penal  statute.  (1.)  The  rule  in 
Heyden^s  case.  "  What  was  the  state  of  the  law  before  the  act  ?" 
The  law  of  the  state  granted  licenses  to  sell  intoxicating  liquors 
in  small  quantities  ;  and  it  was  supposed  the  United  States  laws 
granted  the  right  to  sell  in  large  quantities.  "  What  was  the 
tnischief  against  which  the  former  law  did  not  provide  ?"  The 
general  use,  especially  in  public  places,  of  ardent  spirits  as  a 
beverage.  "  What  remedy  has  the  legislature  provided  by  this 
act  to  cur.e  the  defect?"  The  abolition  of  licenses  for  the  sale 
of  ardent  spirits,  and  the  prohibition  of  the  use  of  intoxicating 
liquors  as  a  beverage.  ''  What  was  the  true  reason  for  the  rem- 
edy ?"  The  "  intemperance,  pauperism  and  crime,"  resulting 
from  its  use.  (2.)  See  rule  in  Ploicden,  565.  "  A  saving  clause 
in  a  statute  is  to  be  rejected  when  it  is  directly  repugnant  to 
the  purvieAv  or  body  of  the  act,  and  could  not  stand  without 
rendering  the  act  inconsistent  with,  and  destructive  of  itself.''^ 
{>See  15  Pet.  445  ;  1  Kent,  463  ;  20  31aine  R.  360.)  (3.)  The 
rule  that  the  intention  of  the  lawgiver  and  the  meaning  of  the 
laAv  are  to  be  ascertained  by  viewing  the  whole  and  every  part 
of  the  act.  {See  Broom's  Legal  Maxims,  4^4^'^,  and  opinion 
there  cited,  hy  Justice  Coleridge.)  Putting  the  1st  and  22d  and 
4th  sections  of  this  act  together,  then,  the  plain  reading,  "  who- 
ever shall  sell  intoxicating  liquor  except  liquor  in  original  pack- 
ages, the  right  to  sell  which  is  given  by  laAv  or  treaty  of  the 
United  States  to  the  importer  thereof,  shall  be  guilty  of  a  misde- 
meanor." (4.)  The  rule,  that  all  words,  whether  they  be  in  deeds 
'or  statutes,  or  otherwise,  if  they  be  general  and  not  express  and 
precise,  shall  be  restrained  unto  the  Jit7iess  of  the  Tnatter  and 
persoti.  {Bacon^s  Maxims,  Reg.  10.  Broom's  Max.  601, 
140,  439.) 

This  act  is  not,  so  far  as  it  bears  on  the  case  at  bar,  a  penal 
statute  within  the  meaning  of  the  rule  construing  penal  statutes 
•strictly.  It  created  no  new  offense,  and  imposed  no  new  punish 
ment.  (1.)  The  selling  of  intoxicating  liquors  in  this  state, 
England  and  all  civilized  countries,  has  been  for  centuries  the 
subject   of  penal  legislation.     (2.)    Instead  of   increasing  the 


MAGARA— SEPTEMBER,  1855.  595 


Wynhamer  v.  The  People 


punishment  for  unlawful  sales,  it  diminished  it — (provided  our 
old  excise  laws  are  repealed  by  it.)  Under  the  revised  statutes, 
the  overseers  of  the  poor  recovered  from  the  seller,  $25  for  each 
sale  under  five  gallons.  In  addition,  for  the  same  sale,  the  par- 
ty was  subject  to  an  indictment ;  the  punishment  of  which  was 
both  fine  to  the  amount  of  $250.  and  imprisonment  for  one  year 
in  the  county  jail. 

Third.  But  assuming  the  penal  provisions  of  the  act  under 
consideration,  relate  exclusively  to  home  made  liquors,  then  the 
indictment,  conviction  and  judgment  can  be  sustained  under  the 
provisions  of  the  revised  statutes  ;  these  provisions  not  being  in 
terms  repealed,  and  not  by  implication,  because  they  are  not 
"  inconsistent  with  this  act"  so  far  as  they  relate  to  the  case  at 
bar.  (1.)  The  15th  and  16th  sections  of  the  excise  act  (1  R.  S. 
681)  prohibit  sales  in  quantities  less  than  five  gallons,  and  the 
25th  section  makes  such  sales,  (without  license,)  misdemeanors. 
(2.)  The  25th  section  of  the  present  act  prohibits  the  granting 
of  licenses,  leaving  the  prohibition  of  sales  in  quantities  less 
than  five  gallons  in  full  force.  (5  Denio,  70,  112.  3  Barb.  S. 
C.  Rep.  548.)  (3.)  Implied  repeals  are  not  favored  by  the  law. 
{Broom's  Legal  Maxims,  24  to  27,  atid  cases  there  cited.)  But 
to  conclude  on  this  branch  of  the  case,  inasmuch  as  no  one  doubts 
the  actual  intention  of  the  legislature  to  have  been  to  place  ad- 
ditional restraints  upon  the  sale  and  use  of  all  imported  as  well 
as  domestic  intoxicating  drinks — and  assuming  that  the  importer 
of  foreign  liquors  has  been  authorized  by  act  of  congress  to  sell 
the  same  in  the  same  quantities  as  imported,  (without  which  as- 
sumption there  is  no  subject  matter  for  the  exception  to  operate 
upon,)  it  is  respectfully  submitted,  this  court  will  by  "restrain- 
ing," in  the  language  of  Bacon,  the  "general"  term  "liquor"  to 
"  the  fitness  of  the  matter  and  the  person" — the  original  package 
and  the  importer,  permit  this  praiseworthy  enactment  "  to  sup- 
press intemperance,  pauperism  and  crime,"  to  effectuate  the 
intent  of  its  makers. 

Fourth  None  of  the  provisions  of  the  "  act  for  the  preven- 
tion of  intemperance,  pauperism  and  crime,"  applicable  to  this 
case — the  retail  sale  of  intoxicating  liquors — and  this  proceed- 


596  CASES  IN  THE  SUPREME  COURT. 

Wynhamer  v.  The  People. 

ing,  by  indictment,  (whatever  opinion  may  be  formed  of  the  va- 
lidity of  the  search  and  seizure  clause,)  are  in  conflict  with  the 
constitutibn  of  the  United  States,  or  of  this  state,  and  therefore, 
were  the  allegations  of  the  sellers  of  intoxicating  liquor  true, 
that  those  constitutional  provisions  are  arbitrary  and  despotic, 
and  consequently  in  conflict  with  natural  justice — this  court 
nevertheless  will  affirm  the  judgment  in  this  case,  and  the  valid- 
ity of  such  provisions  of  the  statute,  because  jMc?^e5  in  the  ex- 
ercise of  judicial  power  cannot  recognize  any  higher  law  than 
the  constitution  of  this  state  and  of  the  United  States. 

As  to  the  other  points  presented  in  the  bill  of  exceptions. 

Pifth.  The  proceedings  relative  to  the  alleged  irregularity  in 
the  organization  of  the  grand  jury,  are  improperly  incorporated 
in  the  bill  of  exceptions,  and  therefore  cannot  be  made  a  ground 
of  error  in  this  form.  (2  R.  S.  736,  §§  21  to  26.  21  Wend. 
509.  4  Denio,  9,  133.)  The  remedy,  if  any  exists,  is  by  man- 
damns.  (20  Wend.  108.)  Again ;  the  motion  to  quash  was 
made  after  pleading  to  the  indictment.  It  was  then  too  late  ; 
at  any  rate  it  then  became  a  matter  of  discretion.  {Barbour's 
Crim.  Law,  348,  9.)  Besides,  the  court  having  ascertained 
the  absenceof  grand  jurors,  in  other  words  excused  them,  prop- 
erly exercised  the  power  of  ordering  the  four  talesmen  to  be 
summoned. 

Sixth.  No  error  can  be  assigned  upon  the  proceedings  of  the 
court  below  upon  the  challenge  to  the  array.  (1.)  The  court 
having  been  constituted  triors  of  the  challenge,  by  consent  of 
the  defendants,  no  exceptions  can  be  taken  to  their  proceeding, 
upon  the  facts.  (2.)  There  being  various  unconnected  allega- 
tions of  fticts  set  forth  in  the  challenge,  one  portion  material  and 
furnishing  good  causes  of  challenge  to  the  array,  as  those  relat- 
ing to  the  absence  of  the  sheriff"  and  county  judge  at  the  time 
of  the  drawing,  and  others  entirely  immaterial,  as  the  mode  of 
sun\moning,  &c.,  and  there  being  no  pretense  of  proof  that  the 
drawing  was  irregularly  conducted,  the  finding  of  the  court  of 
sessions  is  in  accordance  with  the  proof. 


NIAGARA— SEPTEMBER,  1855.  ^97 

Wynhamer  v.  The  People. 

Bi/  the  Court,  Greene.  J.  All  of  the  exceptions  taken  by 
the  defendant  to  the  rulings  of  the  court  below,  on  the  motion 
to  quash  the  indictment  for  irregularity,  and  on  the  trial  of  the 
issue  joined  on  the  challenge  to  the  array,  are  improperly  in- 
corporated in  the  bill  of  exceptions.  Bills  oi'  exceptions  in 
criminal  cases  were  unknown  to  the, common  law.  The  right  to 
a  bill  of  exceptions  in  such  a  case  is  given  by  statute.  Its  of- 
fice is  to  bring  up  for  review  questions  of  law  made  and  decided 
on  the  trial.  But  the  statute  which  ^ives  the  rijcht.  limits  it  to 
exceptions  taken  on  the  trial  of  the  main  issue.  It  is  not  ex- 
tended to  such  as  are  taken  on  the  trial  of  preliminary  or  col- 
lateral questions.  (2  R.  S.  736,  §  21.  Freeman  v.  The  People. 
4  Denio,  21,  per  Beardsley,  J.)  It  will  therefore  be  unneces- 
sary to  examine  the  various  questions  raised  by  those  excep- 
tions, as  our  conclusion  on  them  either  way  could  not  affect  the 
result.  The  same  answer  must  be  given  to  many  of  the 
questions  suggested  by  the  exceptions  taken  on  the  trial  of  the 
main  issue,  and  discussed  on  the  argument.  The  facts  proved 
on  the  trial  do  not  raise  the  questions,  and  any  opinion  which 
we  might  express  upon  them  would  be  the  mere  result  of  gra- 
tuitous speculation  upon  questions  in  which  the  defendant  has  no 
legal  interest. 

The  indictment  was  for  selling  brandy  (not  being  liquor,  the 
sale  of  which  was  authorized  by  th  laws  of  the  United  States) 
to  persons  not  authorized  to  sell  liq  by  the  act  under  which 
the  indictment  was  found.  The  prosecution  proved  several 
sales  by  the  defendant  of  brandy,  at  his  bar,  in  quantities  less 
than  one  pint,  which  liquor  was  drank  on  his  premises.  The 
defendant  offered  to  prove  that  the  brandy  sold  by  him  was  im- 
ported from  foreign  countries,  under  the  revenue  laws  of  the 
United  States  ;  that  the  duties  had  been  paid  thereon  ;  that  he 
purchased  it  from  the  importer  in  the  packages  in  which  it  was 
imported  ;  and  that  it, was  drawn  from  those  packages  and  sold 
by  him  as  proved  on  the  trial.  The  evidence  was  rejected  as 
immaterial,  and  the  defendant  excepted.  He  also  offered  to 
prove  that  the  liquor  in  question  was  owned  by  him  on  and  be- 


598  CASES  IN  THE  SUPREME  COUET. 

Wynhamer  v.  The  People. 

fore  the  3(1  day  of  July,  1855.  This  evirlence  was  rejected,  on 
the  same  ground,  and  the  defendant  excepted. 

Two  questions  of  law  arise  on  these  facts  and  exceptions : 
1st.  What  is  the  extent  of  the  prohibition  wpon  the  sale  of 
liquor,  contained  in  the  first  section  of  the  act  as  it  is  qualified 
by  the  second  and  other  sections?  and  2d.  Is  that  prohibition 
a  valid  legislative  act? 

That  part  of  the  first  section  that  bears  upon  these  questions 
is  in  these  words  :  "  Intoxicating  liquor,  except  as  hereinafter 
provided,  shall  not  be  sold  *  *  *  by  any  person  for  himself 
or  any  other  person  in  any  place  Avhatsoever."  Then  follow  divers 
provisions  prohibiting  the  giving  away  or  keeping  such  liquor 
except  in  certain  specified  places,  which  provisions,  as  they 
have  no  bearing  upon  the  questions  above  stated,  require 
no  examination.  The  last  clause  of  the  section  is  in  these 
words :  "  This  section  shall  not  apply  to  liquor  the  right  to 
sell  Avhich  is  given  by  any  law  or  treaty  of  the  United  States." 
The  second  section  provides  that  certain  persons,  on  comply- 
ing with  its  provisions,  "  may  keep  for  sale  and  may  sell  intoxi- 
cating liquor  and  alcohol  for  mechanical,  chemical  or  medicinal 
purposes,  or  wine  for  sacramental  use."  The  twenty-second 
section  contains  several  provisions  in  relation  to  the  construc- 
tion of  the  act,  and  among  others  a  provision  that  nothing  in 
the  act  shall  be  construed  so  as  to  prevent  "the  importer  of 
foreign  liquors  from  keeping  or  selling  the  same  in  the  original 
packages  to  any  person  authorized  by  the  act  to  sell  such  liquors." 
These  provisions  embody  all  the  prohibitions  and  exceptions  ma- 
terial to  the  questions  under  consideration,  contained  in  this  act. 

It  will  be  observed  that  this  act  contains  no  provision  except- 
ing any  liquor  specifically  from  the  operation  of  the  prohibitory 
clause.  The  exception  in  the  first  section  relates  to  '•  liquor 
the  right  to  sell  which  is  given  by  any  law  or  treaty  of  the 
United  States."  No  law  or  treaty  of  the  United  States  has 
been  cited,  and  I  am  not  aware  that  any  exists,  expressly  giving 
tlie  right  to  sell  any  specific  liquor.  But  there  are  divers  laws 
and  treaties  providing  and  stipulating  for  the  admission  of  for- 
eign liquors  into  the   United   States  upon  certain  terras   pre- 


NIAGARA— SEPTEMBER,  1855.  599 

Wj^nliamer  v.  The  People. 

scribed  by  such  laws  and  treaties.  These  laws  and  treaties 
were  enacted  and  entered  into  in  pursuance  of  the  poAver  con- 
ferred upon  congress  by  the  constitution  of  the  United  States 
"  to  regulate  commerce  with  foreign  nations  and  among  the 
several  states,  and  with  the  indian  tribes."  (Art.  1,  §  8.)  In  the 
case  of  Brown  v.  The  State  of  Maryland,  (12  Wheat.  419,)  it 
was  held  by  the  supreme  court  of  the  United  States  that  an  act 
of  that  state  requiring  importers  to  take  out  a  license  to  sell  im- 
ported merchandise,  was  repugnant  to  the  provisions  of  the 
constitution  of  the  United  States,  prohibiting  the  states  from 
laying  duties  upon  imports.  Chief  Justice  Marshall  in  the 
saine  case  held  that  an  importer  of  foreign  merchandise  who  had 
imported  the  same  under  the  revenue  laws  of  the  United  States 
acquired  a  right  under  such  laws  to  sell  the  imported  article 
in  the  state  and  &)ndition  in  which  it  was  imported  ;  that  the 
law  of  Maryland  was  a  regulation  of  foreign  commerce,  and  as 
such  was  in  conflict  with  the  revenue  laws  of  the  United  States. 
Justice  Thompson  dissented  from  the  positions  taken  by  the 
chief  justice,  and  insisted  upon  the  right  of  the  state  to  levy 
the  license  tax  as  a  legitimate  exercise  both  of  its  power  of  tax- 
ation and  its  power  to  regulate  its  own  internal  trade  ;  holding 
that  the  importer  acquired  no  right  under  the  laws  of  the 
United  States  to  sell  the  imported  article,  independent  of  state 
regulation.  In  the  cases  of  Pierce  v.  The  State  of  New 
Hampshire  ;  Thurlow  v.  The  State  of  Massachusetts,  and 
Fletcher  v.  The  State  of  Rhode  Island,  commonly  known  as 
the  license  cases,  (5  How.  S.  C.  R.)  the  question  as  to  the 
right  of  the  states  to  regulate  and  prohibit  the  sale  of 
liquors,  the  importation  of  which  was  authorized  by  the 
laws  of  the  United  States,  was  brought  before  the  same  court. 
The  statute  of  Massachusetts  under  which  one  of  the  cases 
originated,  made  it  unlawful  for  any  person  to  sell  intoxicating 
litjuor  without  a  license,  in  quantities  less  than  twenty-eight  gal- 
lons. The  law  also  contained  an  express  provision  that  the 
selectmen  in  whom  the  power  to  grant  licenses  was  vested, 
should  not  be  compelled  to  grant  any  licenses.  The  statute  of 
New  Hampshire  prohibited  the  sale  of  liquor  in  that  state    in 


500  CASES  IN  THE  SUPREME  COURT. 

Wj'nhamer  v  The  People. 

a?ii/  qvaiHity.  ■without  a  license.  The  law  of  Rhode  Island 
contained  provisions  similar  to  those  contained  in  the  law  of 
Massachusetts.  The  defendants  were  indicted  and  convicted 
in  the  state  courts,  for  violations  of  these  laws,  and  the  judg- 
ments being  affirmed  by  the  supreme  courts  of  the  states  re- 
spectively, were  qarried  by  writs  of  error  to  the  supreme  court 
of  the  United  States,  In  that  court  it  was  contended  on  the 
authority  of  Brown  v,  Maryland,  that  the  laws  of  Massachu- 
setts and  Rhode  Island  were  void,  on  the  ground  that  the 
laws  of  the  United  States  authorized  the  importation  of  the 
liquor  sold  by  the  defendants  in  those  cases,  (which  liquor  had 
been  actually  imported,)  and  that  the  state  laws  Avere  in  conflict 
with  those  of  the  United  States.  The  liquor  sold  by  the  de- 
fendant, in  the  New  Hampshire  case,  was  imported  from  Massa- 
chusetts, and  it  was  contended  that  the  laAV  of  that  state  was 
repugnant  to  the  provision  of  the  constitution  authorizing  con- 
gress to  regulate  commerce  among  the  states. 

But  the  court  held  that  the  laws  of  the  states  must  be  con- 
strued as  applying  exclusively  to  the  domestic  trade  in  liquor ; 
that  they  had  no  application  to  imported  liquor  in  the  hands  of 
the  importer  ;  that  they  did  not  interfere  with  his  right  to  sell 
in  the  original  packages,  as  laid  down  in  Brown  v  Maryland, 
and  were  not,  for  that  reason,  in  conflict  with  the  laws  of  the 
United  States  under  which  the  liquor  was  imported.  In  tFie 
New  Hampshire  case  it  was  held  that  the  state  law  was  a  regu- 
lation of  commerce  "  among  the  states"  within  the  meaning  of 
the  constitution  and  so  within  the  power  of  congress.  But  the 
law  was  sustained  on  the  ground  that  the  powers  of  congress 
and  the  state  legislature  were  concurrent,  and  that,  as  congress 
had  passed  no  law  regulating  commerce  among  the  states,  the 
state  law  was  valid  until  congress  passed  some  law  conflicting 
Avith  the  provisions  of  the  state  law.  Chief  Justice  Taney  in 
these  cases  reiterated  the  doctrine  laid  down  by  Chief  Jus- 
tice Mai-shall  in  Browji  v.  Maryland,  and  held  that  the  right 
to  sell  imported  liquor,  derived  from  the  United  States,  was 
confined  to  the  importer  and  to  liquor  in  the  casks  or  packages 
in  which  it  was   imported,   and  thart   when  it  passed  from  his 


NIAGARA— SEPTEMBER,  1855.  601 

Wynhamer  v.  The  People. 

hands  it  ceased  to  be  an  import,  and  became  subject  to  state 
regulation.  It  will  be  remembered  that  the  law  of  Massachusetts 
prohibited  sales  in  less  quanties  than  twenty-eight  gallons,  and 
that  the  law  of  congress  authorized  the  importation  of  the 
same  liquor  in  quantities  of  fifteen  gallons ;  and  that  the  law 
could  be  sustained  upon  no  other  ground  than  that  assumed  by 
the  chief  justice,  consistently  with  the  rule  asserted  by  the 
majority  of  the  court,  in  Brown  v.  Maryland.  In  the  license 
cases  Justices  Daniel,  Woodbury  and  Grier  dissented  from  the 
doctrine  laid  down  by  the  chief  justice  and  by  Chief  Justice  Mar- 
shall in  Brown  v.  Maryland,  asserting  the  right  of  the  im- 
porter, under  the  laws  of  the  United  States,  to  sell  imported 
merchandise,  uncontrolled  by  state  regulation.  The  soundness 
of  this  rule  was  questioned  by  those  learned  justices,  and 
^rown  V.  Maryland  was  not  regarded  as  an  authority  for  the 
rule.  The  question  was  not  directly  involved  in  either  case, 
and  it  may  be  doubted  whether  it  is  not  still  open  to  discussion, 
upon  principle.  But  it  will  be  perceived  that  the  right  to  sell 
imported  liquor,  given  by  the  laws  of  the  United  States,  under 
the  broadest  rule  laid  down  by  the  majority  of  the  court  in  the 
cases  cited,  is  subject  to  two  important  qualifications.  1st.  That 
it  remains  in  the  hands  of  the  importer,  and  2d,  that  it  shall  be 
sold  in  the  condition  in  which  its  importation  is  authorized,  and 
that  all  sales  by  other  persons  or  in  any  other  quantity  or  con- 
dition than  that  in  which  it  is  imported,  are  subject,  like  the 
sales  of  all  other  property,  to  such  regulations  as  may  be  pre- 
scribed by  state  laws.  * 

The  question  then  arises  as  to  the  true  construction  of  the 
exception  contained  in  the  first  section  of  the  prohibitory  act. 
The  plaintiff  in  error  contends  that  it  extends  to  all  liquor  in 
specie,  the  right  to  sell  which,  under  any  circumstances,  is 
given  by  the  laws  of  the  United  States.  The  repugnancy  of 
this  construction  to  the  entire  policy  of  the  act  as  manifested 
by  all  of  its  provisions  is  too  plain  to  escape  observation,  and 
if  the  language  of  the  exception  will  fairly  admit  of  two  con- 
structions it  should  receive  that  which  will  best  hrtrmonize  all 
the  provisions  of  the  act.     The  object  of  this  clause,  whatever 

A^OL.  XX.  76 


6Q2  "        CASES  IN  THE  SUPREME  COURT. 

Wyiihanicr  v.  The  Peoi)le. 

the  effect  of  its  construction  may  be,  is  rendered  plain  by  a  ref 
erence  to  the  subject  matter  to  which  it  relates.  It  was  as- 
sumed by  the  legislature  that  a  right  to  sell  certain  liquor  was 
given  by  the  laws  of  the  United  States.  We  have  seen  that 
this  right,  considered  in  its  utmost  extent  as  defined  by  the 
court  whose  province  it  is  to  give  a  construction  to  those  laws, 
is  neither  general  as  to  persons  nor  in  its  application  to  the 
property  to  which  the  laws  in  question  relate.  The  right  on 
the  contrary  is  limited  to  certain  persons^  and  qualified  by  the 
status  of  the  property.  While  it  is  in  the  hands  of  the  im- 
porter, and  in  the  condition  in  which  it  was  imported,  the  laws 
under  which  he  has  imported  it,  give  hirn  a  right  to  sell  it  in 
that  condition.  This  is  the  extent  of  the  right.  When  he 
parts  with  the  property,  or  changes  its  condition,  his  right  and 
all  right  to  sell  it,  derived  from  those  laws,  ceases.  It  is  P't 
longer  the  right  to  sell  which  is  given  by  the  laws  of  the  United 
States.  The  object  of  this  exception  in  the  first  section  clearly 
was,  by  preserving  the  rights  secured  by  the  laws  of  the  United 
States,  to  avoid  collision  with  those  laws,  and  the  general  excep- 
tion of  certain  liquor  in  specie,  from  the  operation  of  the  first 
section,  which  is  claimed  from  a  literal  reading  of  the  clause  in 
question,  should  be  controlled  by  the  limitations  as  to  persons 
and  the  qualifications  as  to  the  status  of  the  property,  which 
are  annexed  to  the  right  of  sale  given  by  the  laws  of  the  United 
States,  so  that  the  provisions  of  the  first  section  will  not  apply 
to  imported  liquor  still  in  the  hands  of  the  importer  and  in  the 
caslcs,  bottles  or  packages  in  which  it  was  imported.  The  pro- 
priety of  this  construction  is  rendered  plain  by  a  reference  to 
the  language  of  the  22d  section,  already  quoted.  This  clause, 
whatever  its  purpose,  or  however  unnecessarily  inserted,  may 
be  resorted  to  on  this  question  of  construction,  as  evidence  of 
the  intention  of  the  legislature.  The  2d  section,  as  we  have 
seen,  provided  that  certain  persons,  on  the  conditions  therein 
prescribed,  might  sell  liquor  for  certain  purposes.  Importers 
were  not  mentioned  in  this  section,  nor  was  it  necessary  under 
any  construction  of  section  1st,  according  to  the  rule  laid  down 
in  the  license  cases,  that  importers  should  be  mentioned  in  sec- 


NIAGARA- SEPTEMBER,  1855.  603 

AVynhamer  v.  The  People. 

tion  2,  but  the  legislature,  apparently  as  a  matter  of  precaution, 
inserted  the  clause  last  cited,  in  the  22d  section.  It  refers  tc 
the  same  subject  matter  as  the  last  clause  of  section  1st,  and 
may  propei'ly  be  read  in  connection  with  it,  and  when  these  two 
clauses  are  read  together  in  the  light  of  all  the  provisions  of  the 
act,  I  think  the  true  construction  of  the  first  section  is  reasonably 
plain.  It  follows  that  the  liquor  sold  by  the  defendant  was  not 
exempted  from  the  operation  of  that  section.  The  evidence  offer- 
ed by  him  to  prove  that  it  had  been  imported  was  therefore 
immaterial,  and  was  properly  rejected.  The  only  remaining 
question  is  as  to  the  validity  of  the  prohibition. 

It  is  claimed  by  the  defendant  that  the  prohibition  is  repug- 
jiant  to  the  provisions  of  the  6th  section  of  the  first  article  of 
the  constitution,  and  therefore  void.  That  part  of  the  section  in 
question  to  which  the  prohibition  is  supposed  to  be  repugnant 
is  in  these  words  :  "  No  person  *  *  *  shall  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensa- 
tion." I  do  not  understand  that  it  is  claimed  that  this  provision 
of  the  act  violates  the  prohibition  contained  in  the  last  clause 
of  that  part  of  the  section  above  quoted.  It  certainly  cannot 
be  maintained  that  this  part  of  the  act  provides  for  the  taking 
of  property,  in  any  sense  of  the  term.  But  it  is  claimed  that 
this  prohibition  of  the  sale  of  liquor  does  in  effect  deprive  the 
owner  of  his  property  in  it.  The  argument  is  that  the  right  to 
sell  and  traffic  in  property  is  incidental  to  and  inseparable  from 
the  title  ;  that  such  right  is  one  of  the  chief  elements  of  its 
i^alue,  and  that  a  law  prohibiting  the  exercise  of  this  right  vir- 
tually deprives  the  owner  of  his  property.  That  liquor  is  prop- 
erty, that  the  right  to  sell  property  is  one  of  its  recognized  legal 
incidents,  and  that  "due  process  of  law"  which  the  constitution 
prescribes  as  the  only  condition  upon  which  the  owner  of  prop- 
erty can  be  deprived  of  it,  means  a  trial  and  judgment  in  a  reg- 
ular judicial  proceeding,  are  propositions  too  well  established  to 
admit  of  argument,  or.  require  the  support  of  authority.  But 
that  the  right  to  sell  and  use  property  at  the  will  of  the  owner 
IS  absolute  and  sul)ject  to  no  resti-aint,  cannot  be  maintained, 


(;04  CASES  m  the  supreme  court. 

Wynhamer  v.  The  People. 

and  will  hardly  be  asserted.  The  rights*  and  interests  of  indi- 
viduals are,  to  some  extent  at  least,  subordinate  to  those  of  the 
public,  and  must  yield  to  them,  in  cases  of  conflict.  It  is  the 
acknowledged  province  of  legislation  to  prescribe  by  law  such 
rules  concerning  the  title  to  property  and  its  sale  and  use  as 
will,  in  the  judgment  of  the  legislature,  most  eflfectuidly  secure 
to  the  owner  the  enjoyment  of  these  rights,  on  the  one  hand,  and 
on  the  other  protect  the  public  from  injuries  that  may  result 
from  the  exercise  of  them.  This  power,  however,  is  subject  to 
the  restraints  imposed  by  the  constitution  through  which,  in 
this  state,  the  legislature  derives  its  powers.  We  have  then 
only  to  compare  the  provision  heretofore  cited,  of  the  first  sec- 
tion of  the  prohibitory  act,  with  the  above  provision  of  the  con- 
stitution, and  from  such  comparison  to  determine  whether  there 
is  any  conflict  between  the  law  and  the  constitution.  The  pro- 
vision of  the  first  section  as  qualified  by  the  second  section,  so 
far  as  the  sale  of  liquor  is  concerned,  is  in  substance  that  in- 
toxicating liquor,  except  for  mechanical,  chemical  or  medicinal 
purposes,  shall  not  be  sold,  (fee.  The  provision  of  the  constitu- 
tion is,  that  no  man  shall  be  deprived  of  his  property  without 
due  process  of  laAV.  The  question  is,  does  this  prohibition  de- 
livive  the  owner  of  liquor  of  that  property?  It  does  not  de- 
prive him  of  the  possession  or  use  of  it ;  but  while  it  remains 
in  the  state,  subject  to  the  law,  it  undoubtedly  diminishes  its 
value;  and  hence  it  is  argued  that  the  owner  is  to  that  extent 
virtually  deprived  of  it.  Substantially  the  same  prohibition  as 
that  contained  in  our  present  constitution,  has  existed  in  all  our 
constitutions  since  the  organization  of  the  state  government ; 
and  under  each  of  these  constitutions  laws  were  passed  imposing 
restraints,  to  a  greater  or  less  extent,  upon  the  sale  of  liquor. 
The  validity  of  those  laws  has  never,  to  my  knowledge,  been 
questioned.  But  the  diff"erence.  it  is  urged,  between  those  laws 
and  the  present  law  is,  that  those  laws  merely  regulated,  while 
this  prohibits  such  sale.  It  remains  to  be  seen  whether  there 
is  any  difference  in  principle  between  the  two  cases  when  they 
are  regarded  with  reference  to  the  objection  now  under  consiil- 
eration.     The  only  cases  cited  in  which  this  question  has  been 


NIAGARA— SEPTEMBER,  1855.  605 

Wynhamer  v.  The  People. 

considered  by  this  court,  are  those  of  The  People  v.  Berberrich, 
and  The  People  v.  Toynbee,  decided  at  a  general  term  in  the 
second  district,  by  Justices  Brown,  Strong  and  Rockwell.(rt) 
A  prosecution  was  commenced  in  each  case  before  a  magistrate, 
upon  a  charge  of  selling,  and  having  with  intent  to  sell,  intoxi- 
cating liquor.  Both  defendants  were  convicted,  and  in  Toyn- 
bee^s  case  a  fine  was  imposed  pursuant  to  the  statute,  and  a 
judgment  of  forfeiture,  directing  the  destruction  of  the  liquor, 
was  rendered,  from  which  judgment  the  defendant  appealed  to 
this  court.  Berberrich^s  case  was  removed  by  certiorari  before 
sentence.  An  objection  was  taken  before  the  magistrate  in 
Toynbee''s  case  to  the  sufiiciency  of  the  complaint,  and  also  to 
the  jurisdiction  of  the  magistrate  to  proceed  to  try  the  case 
after  the  defendant  had  offered  to  give  bail  to  answer  to  an  in- 
dictment; and,  as  I  understand  the  opinion  of  Justice  Brown, 
the  last  objection  was  taken  in  BeiberricK's  case.  Justice 
Strong  held  both  the  objections  good,  and  my  recollection  of  Jus- 
tice Rockwell's  opinion  (which  I  have  not  now  before  me)  is,  that 
he  concurred  with  Justice  Strong  as  to  the  validity  of  the  above 
objections,  and  concurred  in  the  judgment  on  that  ground  alone. 
Justice  Brown  held  that  the  last  objection  was  not  well  taken, 
but  held  that  the  first  section  of  the  law.  so  far  as  it  prohibits 
the  sale  of  liquor,  the  sections  or  provisions  which  provide  for 
its  seizure  and  destruction,  and  several  other  provisions  under 
Avhich  (as  I  understand  the  facts  from  the  several  opinions)  no 
questions  were  raised  in  the  cases,  were  unconstitutional.  Jus- 
tice Strong  concurred  in  this  opinion  as  to  the  unconstitutionality 
of  the  prohibitory  clause  of  the  first  section,  and  the  judgments 
were  reversed.  Both  of  the  learned  justices  placed  their  opin- 
ions upon  the  ground  that  the  prohibition  of  the  sale  of  liquor 
was  virtnally  depriving  the  owner  of  his  property  in  it.  Jus- 
tice Strong  says  :  "  The  protection  of  any  species  of  property 
must  necessarily  extend  to  its  essential  and  definitive  character- 
istics, especially  those  which  constitute  its  main  value.  *  *  * 
One  of  the  essential  characteristics  of  property  is  its  vendible* 
ness,  especially  for  the  principal  use  to  which  it  can  be  appro- 
(a)  Reported  ante,  pp.  168,  224. 


COa  CASES  I"N'  THE  SUPREME  COURT. 

Wyiiliamer  v.  The  People. 

priated.  *  *  *  That  the  manner  of  selling  it  may  be  rerrylaied^ 
so  long  as  the  right  is  essentially  preserved^  there  can  be  no 
doubt.  *  *  *  Upon  the  whole,  my  conclusion  is,  that  the  right 
of  property  extends  not  only  to  its  corpus,  Imt  to  its  ordinary 
and  essential  characteristics,  of  which  the  right  of  sale  is  one, 
and  that  it  can  be  controlled  only  so  far  as  to  prevent  abuse, 
without  destroying  such  characteristics."  The  learned  justice, 
speaking  of  our  former  excise  laws,  thus  states  the  difference 
between  the  present  statute  and  those  laws  :  "  They  were,  how- 
ever, by  no  means  prohibitory  of  the  right ;  every  man  was  at 
liberty  to  sell  in  quantities  exceeding  five  gallons,  and  a  select- 
ed class,  in  any  quantity."  In  conclusion,  the  learned  justice 
says  :  "  I  consider  the  statute  in  question  as  mainly  prohibit- 
ing the  sale  of  intoxicating  liquor  as  a  beverage,  and  destruc- 
tive of  its  principal  value ;  and  with  that  impression,  I  must 
adiudge  it  to  be  null  and  void  to  that  extent."  Justice  Brown, 
speaking  of  the  character  of  the  act,  says :  "  If  its  office  is  one 
of  mere  regulation,  to  prescribe  by  ichom,,  and  to  whom,  and  at 
Avhat  places  liquors  in  certain  quantities  may  be  sold,  then  it 
does  no  more  than  the  excise  law  which  it  is  thought  to  super- 
sede ;  and  although  prejudicial  to  existing  interests,  and  may 
subject  certain  classes  to  some  privations  and  inconvenience, 
it  is  nevertheless  a  law  of  binding  obligation,  which  the  people 
must  oljey  and  the  tribunals  of  justice  enforce."  Speaking  of 
the  written  limitations  upon  legislative  power,  contained  in  our 
state  constitution,  the  learned  justice  adds :  "  They  were  in- 
tended to  save  absolute  inherent  rights  from  the  power  of  legis- 
lative acts  which  interrupt  their  enjoyment  or  impair  their 
value.  *  *  *  There  can  be  no  property,  in  the  legal  and  proper 
sense  of  the  terra,  where  neither  the  "owner  or  the  person  who 
represents  the  owner  has  the  power  of  the  sale  and  disposition. 
That  which  cannot  be  used,  enjoyed  or  sold,  is  not  property  •, 
and  to  take  away  all  or  any  of  these  incidents,  is  in  effect  to 
deprive  the  owner  of  his  property." 

Both  of  the  learned  justices  from  whose  opinions  I  have 
quoted,  concede  the  power  of  the  legislature  to  regulate  the 
"  manner  of  selling,"  and  to    prescribe  "  by  whom  liquors  in 


NIAGARA— SEPTEMBER,  1855.  GOT 


Wjnhamer  v.  The  People. 


certain  quantities  may  be  sold."  Upon  what  principle,  consist- 
ent with  this  constitutional  provision,  if  it  is  applicable  at  all 
to  this  species  of  legislation,  can  the  legislature,  in  the  lan- 
guage of  one  of  the  learned  justices,  prescribe  "iy  wJiorri'^ 
liquors  in  certain  quantities  may  be  sold,  or  in  the  language  of 
the  other  learned  justice,  designate  a  "  selected  class"  to  sell 
in  such  quantities,  while  it  prohibits  others  from  doing  the 
same  thing.  Those  who  do  not  happen  to  be  thus  " prescrihed" 
who  do  not  belong  to  the  "  selected  class,"  and  who  may  happen 
to  own  liquor  iu  quantities  less  than  those  in  which  all  are 
authorized  to  sell,  would  be  as  effectually  '•  deprived  of  their 
propertif  under  such  a  law,  as  those  who  own  larger  quantities 
are  so  deprived  by  this  law.  It  is  no  answer  to  say  that  such 
a  law  would  affect  but  few  persons  and  a  limited  amount  of 
property,  nor  that  its  object  is  to  regulate  "  only  so  far  as  to 
prevent  abuse."  The  protection  of  this  constitutional  provis- 
ion, in  its  letter  and  spirit,  extends  in  equal  measure  to  each 
individual,  and  the  aggregate  population  of  the  state,  and  to 
all  property  J  Avhether  its  value  is  measured  by  mills  or  millions. 
Tt  matters  not  Avhether  a  few,  or  many,  are  deprived  of  their 
property,  or  whether  the  amount  of  which  they  are  deprived  be 
small  or  great — whether  a  person  is  deprived  of  an  inconsider- 
able portion  or  all  of  his  property.  The  constitutional  prohibi- 
tion is  not  fractional,  but  an  unit,  indivisible  and  absolute.  It 
regards  the  character  of  the  act  and  not  the  extent  of  its  con- 
sequences. If  the  act  is  prohibited,  no  consideration  of  conse- 
quences can  change  its  character,  nor  can  it  be  palliated  by  the 
purpose  which  prompted  it,  however  laudable.  If,  therefore,  a 
law,  which  in  its  operation  diminishes  the  value  of  property, 
can  be  regarded  as  depriving  the  owner  of  it,  no  law  that  pro- 
duces that  effect  can  be  sustained.  The  argument  under  con- 
sideration, when  followed  to  its  logical  consequences,  will  not; 
and  cannot  be  satisfied  with  the  overthrow  of  the  law  in  quos- 
tion.  Many  of  our  police  and  sanitary,  and  all  of  our  Qommercial 
regulations,  our  quarantine  and  usury  laws,  must  share  the 
same  fate.  Their  effect  upon  property  is  the  same — the  differ- 
ence  is   only   in  degree  ;  and  if  this  constitutional  provision 


G08  CASES  IN  THE  SUPREME  COURT. 


Wynhamer  v.  The  People. 


applies  to  any  such  laws,  it  necessarily  prohibits  all.  For  the 
attempted  distinction  between  the  "  essential  characteristics'' 
of  property  and  any  of  its  incidents  or  qualities  which  are  re- 
garded as  elements  of  its  value,  whether  they  "  constitute  its 
main  valuej'^  or  only  a  small  part  of  it ;  and  between  laws 
which  "  subject  certain  classes  to  some  privations,'^  and  laws 
which  affect  all  classes,  and  involve  great  privations,  there  is 
no  foundation  in  the  constitution  whose  protection  and  pruhibi- 
tions  are  general ;  nor.  I  respectfully  submit,  in  reason,  which 
rejects  distinctions  where  it  fails  to  perceive  differences.  The 
validity  of  such  laws  rests  upon  no  restricted  construction  of 
this  constitutional  provision,  but  upon  a  principle  of  the  com 
mon  law  older  than  constitutions,  coeval  with  the  earliest  civil 
ized  ideas  of  property.  That  principle  is,  that  every  man  shall 
so  use  and  enjoy  his  own,  as  not  to  injure  another,  and  espe- 
cially that  the  use  which  he  makes  of  his  property  shall  not 
work  a  public  evil.  This  is  another  incident  to  the  right  of 
property  as  inseparable  from  the  title  as  the  right  of  sale,  or 
any  other  right  of  enjoyment  annexed  to  it.  The  legislature 
which  exercises  the  sovereign  power  of  the  state  is  clothed 
with  the  power,  and  charged  Avith  the  duty,  of  promoting  itvS 
prosperity  by  regulating  its  internal  commerce,  and  holding 
out  suitable  encouragement  to  the  industry  of  its  citizens ;  of 
preserving  the  public  peace  by  preventing  and  punishing  crime, 
and  guarding  the  health  and  morals  of  the  people  by  such  laws 
and  regulations  as  in  its  judgment  may  seem  likely  to  promote 
these  objects.  Subject  only  to  the  limitations  prescribed  by 
the  constitution,  the  powers  of  the  legislature  for  these  pur- 
poses are  unlimited.  In  the  choice  of  the  means  its  discretion  is 
plenary.  If,  in  its  judgment,  the  trade  in  any  article  is  incom- 
patible with,  or  dangerous  to  any  of  these  objects  of  its  protection, 
that  trada  may  be  regulated,  restricted  or  prohibited,  in  the  dis- 
cretion of  the  legislature.  It  is  admitted  that  the  sale  may  be 
controlled,  but  it  is  claimed  that  it  can  be  done  ''^  only  so  far*' 
"  as  to  'prevent  abuseP  According  to  this  proposition,  if  abuse 
should  be  found  inseparable  from,  or  so  generally  attendant 
upon  the  exercise  of  the  right  as  to  render  the  permission  of 


NIAGARA— SEPTEMBER,  1855.  Q(\Q 

Wj'niiamer  v.  The  People. 

the  one  and  the  prevention  of  the  other  impracticable,  the  right 
to  prohibit  would  necessarily  follow.  Whether  this  abuse  is  so 
intimately  connected  with  this  traffic  is  a  question  of  fact,  proper 
for  the  consideration  of  the  legislature,  in  the  exercise  of  its 
discretion,  to  ascertain  the  necessity  and  determine  the  extent 
of  its  action  ;  but  this  is  an  inquiry  which  the  court  cannot 
entertain,  in  considering  a  question  of  power.  The  foregoing 
positions  cannot  be  more  clearly  illustrated  or  more  powerfully 
enforced  than  they  are  in  the  language  of  Chief  Justice  Mar- 
shall, in  Brown  v.  Maryland.  In  reply  to  the  argument  of 
the  counsel  for  the  state,  in  favor  of  the  power  there  claimed, 
to  lay  duties  on  imports,  or  to  require  importers  to  procure 
licenses  from  the  state  to  sell  their  imports,  in  which  it  was 
urged  that  the  states  would  not  be  likely  to  impose  such  terras 
as  to  discourage  or  diminish  importation,  the  chief  justice  said  ; 
•'  It  is  obvious  that  the  same  power  which  imposes  a  light  duty 
can  impose  a  heavy  one,  one  which  amounts  to  prohibition. 
Questions  of  power  do  not  depend  on  the  degree  to  which  it 
may  be  exercised.  If  it  may  be  exercised  at  all,  it  must  be 
exercised  at  the  will  of  those  in  whose  hands  it  is  placed. 
*  *  *  The  question  is,  where  does  the  power  reside,  not 
how  far  will  it  be  probably  abused.  The  power  claimed  by 
the  state  is,  in  its  nature,  in  conflict  with  that  given  to  con- 
gress, and  the  greater  or  less  extent  in  which  it  may  be  exer- 
cised, does  not  enter  into  the  inquiry  concerningits  existence." 

The  law  of  this  state,  which  was  superseded  by  the  act  in 
question,  was  probably  as  favorable  an  illustration  of  the  ex- 
ercise of  the  regulating  power  as  could  be  instanced.  I  un- 
derstand both  of  the  learned  justices,  whose  opinions  are  above 
quoted,  to  concede  the  validity  of  its  provisions.  And  yet  a 
slight  consideration  of  its  practical  effect  will  show  that  the 
alleged  "  absolute  and  inherent  rights"  of  the  owners  of  this 
property  did  not  escape  the  obnoxious  effect  attributed  to  the  law 
in  question,  but  that  on  the  contrary  it  "  interrupted  their  enjoy- 
ment and  impaired  their  value."  It  prohibited  all  but  a  "  se- 
lected class"  from  selling  in  less  quantities  than  five  galloris. 

Vol.  XX.  77 


G  1  0  CASES  JX  THE  SUPREME  COURT. 


Wynhamer  v.  The  People. 


and  thus  not  only  "interrupted,"  but  destroyed  the  right  to 
that  extent.  It  circumscribed  the  market,  and  decreased  the  de- 
mand for  the  article  to  a  certain  extent,  and  thus  "  impaired  its 
value"  to  the  same  extent.  Similar  illustrations  might  be  drawn 
from  our  quarantine  and  health  laws,  and  the  police  and  other 
regulations  of  municipal  corporations.  But  I  propose  to  pursue 
the  history  of  legislation  on  this  subject,  and  to  examine  briefly 
some  of  the  adjudications  upon  the  laws  of  other  states.  By 
the  law  of  Massachusetts,  under  which  one  of  the  license  cases 
irose,  all  persons  were  prohibited  from  selling  liquors  in  quan- 
tities less  than  twenty-eight  gallons,  without  a  license,  and  the 
Act  contained  a  provision  that  the  commissioners  of  excise 
flhould  in  no  case  be  compelled  to  grant  a  license.  This  law.  it 
B"ill  be  seen,  exercised  the  power  of  regulation  to  an  extent  ap- 
proaching very  nearly  to  practical  prohibition.  The  law  of 
Rhode  Island,  under  which  another  of  those  cases  arose,  con- 
tained a  provision  similar  to  that  of  the  Massachusetts  law, 
fixing  the  minimum  quantity  that  might  be  sold  without  a 
license,  at  ten  gallons.  The  law  of  New  Hampshire  went  still 
further,  and  prohibited  all  sales  without  a  license.  There  was 
no  provision  in  the  law  under  which  licenses,  to  any  extent, 
coitid  be  procured  as  a  matter  of  right.  The  power  of  granting 
and  refusing  licenses  was  to  be  exercised  in  the  discretion  of 
the  officers  designated  for  that  purpose.  It  will  be  seen  that 
absolute  prohibition  might  result  from  the  operation  of  this 
law.  That  this  was  the  design  of  the  law,  and  the  effect  of  its 
operation  in  a  great  majority  of  cases,  no  one  can  doubt.  That 
all  of  these  laws  contained  unusually  stringent  restrictions 
upon  the  sale  of  liquor,  that  they  seriously  interrupted  the  en- 
joyment and  impaired  the  value  of  the  right  of  sale,  no  one 
will  deny ;  but  whether  the  right,  in  the  language  of  Justice 
Strong,  was  even  "essentially  preserved"  by  the  New  Hamp- 
shire law,  might  well  be  doubted.  As  was  natural,  these  laws 
encountered  sturdy  opposition  from  the  interests  so  seriously 
affected  by  them.  They  were  subjected  to  the  most  searching 
judicial  scrutiny,  and  their  validity  was  affirmed  by  tlie  su- 
preme courts   of   the  respective   states.     The  constitution  of 


NIAGARA— SEPTEMBER,  1855.  Q  ]  } 

Wj-nhamer  v.  The  People. 

each  of  those  states  contained  the  same  prohibition  against  de- 
priving citizens  of  their  property,  "  without  due  process  of  law,'' 
as  is  relied  on  in  this  case  ;  and  yet  it  is  a  remarkable  fact,  that 
in  all  the  discussions  which  these  cases  underwent  in  the  state 
courts,  this  objection  was  not  suggested.  The  question,  as  we 
have  seen,  which  was  argued  in  the  supreme  court  of  the 
United  States  was,  whether  those  laws  were  in  conflict  with 
those  of  congi'ess,  regulating  commerce.  The  question  now 
under  consideration  could  not  arise  in  that  court,  and  for  that 
reason  the  decided  opinions  of  the  chief  justice  and  other  mem- 
bers of  the  court,  in  favor  of  the  right  of  the  states  to  prohibit 
entirely  the  domestic  traffic  in  liquor,  cannot  be  regarded  as 
authority,  in  the  strict  sense  of  the  term,  on  this  point.  But 
the  construction  by  that  court  of  the  state  laws,  Avhich  in  their 
terms  comprehended  all  liquors,  limiting  their  application  to  the 
domestic  trade  for  the  purpose  of  maintaining  the  validity  of 
those  laws,  shows  the  high  sense  entertained  by  that  court  of 
the  importance  of  preserving  in  its  utmost  latitude  the  power 
of  the  states  to  control  by  restrictions  or  prohibitions  their  do- 
mestic trade.  A  legislative  recognition  of  the  same  principle, 
equally  significant,  is  found  in  the  excise  laAvs  passed  b}'-  con- 
gress in  1794  and  1813,  each  of  which  contained  a  proviso  that 
no  license  to  sell  liquor  should  be  granted  under  the  law  to  any 
person  Avho  was  prohibited  from  selling  by  the  laws  of  any 
state. 

Another  instance  of  the  exercise  of  this  power  of  regulation 
to  the  extent  of  absolute  prohibition  is  furnished  in  the  embar- 
go laws  passed  by  congress  in  1807,  which  prohibited  all  im- 
portation  and  exportation  to  or  from  any  foreign  country. 
The  laws  were  by  their  terms  unlimited  as  to  the  time  of  their 
duration  and  were  maintained  in  full  force  for  nearly  two  years 
It  wao  objected  to  them  that  the  constitutional  power  to  regu- 
late commerce  under  which  the  laws  were  passed  did  not  author- 
ize r-rngress  to  destroy  commerce,  as  those  acts  confessedly  did. 
The  question  was  raised  in  the  district  court  of  the  United 
States,  for  the  district  of  Massachusetts,  in  the  case  of  l%e 
United  States  v.  Th".   Brigantine  William,  (2  HalVs  Law 


612  CASES  IN  THE  SUPREME  COURT. 

Wj'nhamer  v.  The  People. 

Joun.al,  253.)  in  whicli  a  libel  was  filed  to  enforce  a  forfeiture 
of  the  vessel  for  being  engaged  in  the  exportation  of  merchan- 
dise in  violation  of  those  laws.  It  was  argued  in  behalf  of 
the  claimant  that  the  acts  of  congress  were  utterly  void  ; 
that  there  was  not  only  an  entire  want  of  power  in  the  con- 
stitution to  prohibit  commerce,  but  that  the  act  was  in  direct 
violation  of  the  grant  of  power  to  regulate,  which  necessa- 
rily implied  the  duty  of  preserving  the  thing  to  be  regulated. 
The  court  held  the  law  to  be  constitutional.-  Davis,  district 
judge,  in  an  elaborate  opinion,  examined  the  question  in  all 
its  bearings.  In  discussing  the  questions  as  to  the  nature 
and  extent  of  legislative  power,  and  the  restrictions  upon  it 
which  could  he  enforced  by  the  judiciary,  the  learned  judge 
said,  "  affirmative  provisions  and  express  restrictions  contain' 
ed  in  the  constitution  are  sufficiently  definite  to  render  decisions, 
probably  in  all  cases,  satisfactory,  and  the  interference  of  the 
judiciary  with  the  legislature,  to  use  the  language  of  the  consti- 
tution, would  be  reduced  to  '  cases^  easily  to  be  understood,  and 
in  which  the  superior  commanding  will  of  the  people,  who  es- 
tablished the  instrument,  would  be  clearly  and  peremptorily  ex- 
pressed. To  extend  the  censorial  power  further,  and  especially 
to  extend  it  to  the  degree  contended  for  in  the  objections  under 
consideration,  would  be  found  extremely  difficult,  if  not  imprac- 
ticable in  execution.  To  determine  where  the  legitimate  exer- 
cise of  discretion  ends,  and  usurpation  begins,  would  be  a  task 
most  delicate  and  arduous.  Before  a  court  can  determine  wheth- 
er a  given  act  of  congress,  bearing  relation  to  a  power  with 
which  it  is  vested,  be  a  legitimate  exercise  of  that  power  or' 
transcend  it,  the  degree  of  legislative  discretion  admissible  in 
the  case  must  first  be  determined.  Legal  discrrtion  is  limited. 
*  *  *  Polical  discretion  has  a  far  wider  range.  It  embraces, 
combines,  and  considers  all  circumstances,  events  and  projects, 
foreign  or  dom.estic,  that  can  affect  the  national  interests.  Le- 
gal discretion  has  not  the  means  of  ascertaining  the  grounds 
upon  which  political  discretion  may  have  proceeded.  It  seems 
admitted  that  necessity  might  justify  the  acts  in  question.  But 
how  shall  legal  discussion  determine  that  political  discretion. 


NIAGARA- SEPTEMBER,  1855.  Q\-^ 


WjTihanier  v.  The  People. 


snrveying  the  vast  concerns  committed  to  its  trust,  and  the 
movements  of  conflicting  nations,  has  not  perceived  svch  neces- 
sity/^ Speaking  of  the  objects  for  which  this  power  may  be 
exercised,  the  learned  judge  said,  "  The  mode  of  its  manage- 
ment is  a  consideration  of  great  delicacy  and  importance ;  but 
the  national  right  or  pov/er,  under  the  constitution,  to  adapt 
regulations  of  commerce  to  other  purposes  than  the  mere  ad- 
vancement of  commerce,  appears  to  me  unquestionable."  The 
late  Justice  Story,  in  commenting  upon  this  provision  of  the 
constitution,  and  in  the  same  connection  on  the  embarrro  laws, 
and  the  question  involved  in  the  case  just  cited,  says  :  "  No  one 
can  reasonably  doubt  that  the  laying  of  an  embargo,  suspending 
commerce  for  a  limited  period,  is  within  the  scope  of  the  consti- 
tution. But  the  question  of  diflBculty  was,  whether  congress, 
under  the  power  to  regulate  commerce  with  foreign  nations, 
could  constitutionally  suspend  and  interdict  it  wholly  for  an  un- 
limited period,  that  is  by  a  permanent  act,  having  no  limitation 
as  to  duration,  either  of  the  act  or  of  the  embargo.  *  *  *  An  ap- 
peal was  made  to  the  judiciary  upon  the  question,  and  it  having 
been  settled  to  be  constitutional  the  decision  was  acquiesced  in, 
though  the  measure  bore  with  almost  unexampled  severity  upon 
the -eastern  states — and  its  ruinous  effects  can  still  be  traced 
along  their  extensive  seaboard.  *  *  *  Non-intercourse  and  em- 
bargo laws  are  within  the  range  of  legislative  discretion ;  and 
if  congress  have  the  power,  for  purposes  of  safety,  of  prepara- 
tion or  counteraction,  to  suspend  commercial  intercourse  with 
foreign  nations,  they  are  not  limited  as  to  duration,  any  more 
than  as  to  the  manner  and  extent  of  the  measure." 

The  effect  of  these  laws  upon  private  property  was  far  more 
extensive  and  destructive  than  any  that  can  possibly  result 
from  the  law  in  question.  The  right  to  export  property,  de- 
signed and  valuable  only  for  that  purpose,  was  one  of  those 
"  essential  and  definitive  characteristics  which  constituted  its 
main  value."  The  prohibition  was  "  destructive  of  its  princi- 
pal value^^  and  property  of  the  value  of  many  millions  was  ren- 
dered worthless  by  their  operation.  The  constitution  of  the 
United  States  contains  the  same  restrictions  upon  the  legislative 


6 1  4  CASES  IN  THE  SUPREME  COURT. 

Wynhamer  v.  The  People. 

power  of  congress  that  is  imposed  by  the  constitution  of  oar 
state  upon  its  legislature,  that  no  man  shall  be  deprived  of  his 
property  without  due  process  of  law.  But  in  all  the  opposition 
which  the  embargo  laws  encountered,  the  objection  that  they 
violated  this  provision  of  the  constitution  occurred  to  none  of  its 
astute  and  able  opponents. 

The  case  of  the  William  is  a  direct  authority  for  the  propo- 
sition that  the  national  government,  under  the  constitutional 
grant  of  power  to  regulate  commerce,  may  restrict  it,  hi  its  dis- 
cretion ;  that  such  restriction  may  be  carried  to  the  extent  of 
absolute  prohibition,  and  that  this  power  is  not  restricted  to 
measures  exclusively  beneficial  to  commerce,  but  that  it  may  be 
exercised  as  an  instrument  for  other  purposes  of  general  policy 
and  interest.  These  propositions  may,  in  my  opinion,  be  rested 
with  equal  safety  upon  the  authority  of  this  case,  and  the  con- 
clusive reasoning^  by  wdiich  it  is  sustained.  The  powers  of 
congress  are  enumerated  in  the  constitution,  and  are  expressly 
restricted  to  those  so  enumerated.  The  pov/er  in  question  is 
limited  to  commerce  with  foreign  nations,  and  among  the  states. 
That  the  same  power  over  internal  commerce  is  reserved  in  all 
its  amplitude  by  the  several  states,  is  not  questioned,  and  that 
a  state,  by  virtue  of  its  powers  of  original  sovereignty,  which 
are  merely  limited  by  specific  restrictions  and  not  enumerated 
in  its  constitution,  may,  in  the  absence  of  such  restrictions,  ex- 
orcise the  same  control  over  its  domestic  commerce,  as  that  ex- 
ercised by  congress  over  foreign  commerce,  and  for  the  same 
purpose,  cannot  be  doubted. 

In  view  of  this  lonff  continued  and  uniform  course  of  le;risla- 
tion,  based  upon  the  concurring  authority  of  the  general  govern- 
ment and  the  several  states,  sanctioned  by  general  acquiescence, 
and  vindicated  by  judicial  authority,  whenever  questioned,  ac- 
companied as  such  legislation  has  uniformly  been,  by  cotempo- 
raneous  constitutional  restrictions,  identical  with  the  restriction 
now  invoked  against  this  law,  the  question  as  to  a  conflict  be- 
tween the  law,  in  the  respect  now  under  consideration,  and  the 
constitution,  must  be  regarded  as  settled. 

The  prohibition  in  this  act,  as  I  have  remarked,  does  not  affect 


N I  AGx\R  A— SEPTEMBER,  1855.  Q],^ 

Wynliamer  v.  The  People. 

the  possession  of  the  property.  It  does  not  interfere  with  the 
right  of  sale,  except  Avithin  the  state,  and  notwithstanding  this 
prohibition,  those  interested  in  this  property  may  manufacture 
and  export  it  for  sale  elsewhere.  I  say  notwithstanding  this 
prohibition.  I  am  aware  that  there  are  provisions  in  the  act 
which  were  perhaps  designed,  and  which  may  possibl}^  be  con- 
strued to  prevent  this.  The  provision  that  it  shall  not  be  kept 
in  any  place,  except  a  dwelling  house  or  church,  has  been  cited 
with  others  supposed  to  evince  a  destructive  purpose  towards 
this  property,  which  are  alleged  to  be  plainly  repugnant  to  the 
constitutional  rights  of  the  citizen.  But  the  defendant  has  not 
been  prosecuted,  nor  has  his  property  been  proceeded  against 
under  these  provisions.  When  he  is  indicted  for  keeping  liquor, 
in  violation  of  this  act,  or  proceedings  are  instituted  to  enforce 
a  forfeiture  of  his  liquor,  for  any  such  cause,  different  questions 
will  be  presented.  With  these  questions  we  have  nothing  to  do 
in  this  case.  When  they  are  legally  presented  for  our  consider- 
ation, the  parties  interested  in  them  will  be  entitled  to  the  de- 
liberate and  unbiased  judgment  of  the  court  upon  them.  But 
to  secure  this,  it  is  not  only  proper,  but  indispensable,  that  the 
parties  interested,  instead  of  the  court,  should  be  first  heard. 
The  legislature  have  said  that  the  defendant  shall  not  sell  intox- 
icating liquor  in  this  state.  He  has  chosen  to  disregard  that 
injunction,  and  has  been  convicted  of  an  offense  against  the  law. 
He  disputes  the  right  of  the  kgislature  to  pass  the  law,  and  this 
question  and  the  question  of  construction  heretofore  considered, 
we  are  called  upon  to  decide — nothing  more.  With  the  ques- 
tions as  to  the  wisdom,  policy  and  propriety  of  the  law,  which 
were  discussed  with  so  much  zeal  by  the  defendant's  counsel  at 
the  bar,  we  have  nothing  to  do.  Those  are  questions  addressed 
exclusively  to  the  discretion  of  the  legislature.  This  is  a  mere 
question  of  power.  If  the  power  which  the  legislature  has  as- 
sumed to  exercise,  exists,  and  the  law  is  plain,  the  duty  of  the 
judge  and  the  citizen  is  the  same — that  of  simple  obedience. 
To  both  alike  it  speaks  the  language  of  command,  and  not  of 
persuasion.  I  know  of  no  principle  recognized  by  the  consti- 
tution, or  resulting  from  any  sound  theory  of  government,  which 


f^l5  CASES  O  THE  SUl'REME  COURT. 

Rich  V.  Milk. 

requires  or  authorizes  the  judiciary  to  interfere  between  th« 
legishiture  and  the  people  to  shield  the  latter  from  the  conse- 
quences of  an  improvident  or  capricious  use,  or  even  a  positive 
abuse,  of  legislative  power.  The  remedy  for  such  abuses,  if 
they  exist,  is  in  other  hands.  It  rests  with  the  people,  who 
in  their  constitution,  have  established  the  only  restrictions  upon 
legislative  poAver  that  can  be  judicially  recognized  or  practically 
enforced,  except  by  those  in  whom  the  ultimate  powers  of  sove- 
reignty reside. 

The  judgment  of  the  court  of  sessions  should  be  affirmed. 

[Niagara  General  Term,  September  3,  1855.     Bowen,  Mullett  and  Greene, 
Justices.] 


Rich  vs.  Milk, 

A  chattel  mortgage  was  executed  by  P.  in  the  usual  form,  to  K.,  transferring  to 
the  mortgagee  the  legal  title  to  the  property.  By  the  fii-st  clause  of  the  condi- 
tion this  title  was  made  defeasible  upon  the  payment  of  the  mortgage  debt 
according  to  the  tei'ms  of  the  condition.  By  another  clause  it  was  provided 
that  if  default  should  he  made  in  such  payment,  or  if  K.  should  at  any  tlma 
deem  himself  in  danger  of  losing  his  debt  by  delaying  the  collection  thereof 
until  it  became  due,  he  might  take  possession  of  tlie  property  at  any  time,  de- 
fore  or  after  the  time  limited  for  the  payment  of  such  debt,  and  sell  the  same, 
or  so  much  thereof  as  should  be  necessary  to  satisfy  the  debt,  &e.  Held  that 
this  latter  clause  did  not,  by  implication,  give  to  the  mortgagor  the  right  to 
retain  the  i)ossession  of  the  property  until  the  hapiiening  of  the  contingency  ; 
but  that  the  ix)wcr  given  to  the  mortgagee,  by  that  stipulation,  was  intended 
as  a  cumulative  remedy,  merely,  and  did  not  qualify  his  right,  as  the  legal 
owner,  to  the  possession  of  the  property  at  all  times,  before  the  performance 
of  the  condition  which  was  to  defeat  his  title. 

It  was  accordingly  held,  further,  that  an  assignee  of  the  mortgage  had  a  right 
to  take  possession  of  the  property  and  to  retain  it,  as  against  the  mortgagor, 
and  all  claiming  under  him,  before  the  mortgage  debt  became  due  and  payable 

THIS  action  was  commenced  before  a  justice  of  the  peace  of 
the  county  of  Cattaraugus.     The  plaintiff  complained  in  tro 
ver  for  five  cows,  converted  by  the  defendant.     The  defendant 


NIAGARA- SEPTEMBER,  1855.  617 

•  Rich  V.  Milk. 

by  his  answer,  denied  the  complaint,  and  justified  the  taking; 
under  a  chattel  mortgage,  of  which  he  was  the  assignee.  The 
plaintiff  recovered  a  judgment  for  $55  damages  and  costs.  The 
defendant  appealed  to  the  county  court,  where  the  judgment 
was  affirmed.     He  then  brought  an  appeal  to  this  court. 

W.   Woodbwy,  for  the  appellant. 

C.  C.  Torrance,  for  the  respondent. 

By  the  Court,  Greene,  J.  This  is  an  action  brought  to  re- 
cover the  value  of  the  plaintiff's  special  property  in  five  cows, 
which  he  alleges  have  been  wrongfully  converted  by  the  defend- 
ant. The  plaintiff  claims  under  a  contract  with  one  William 
R.  Phillips,  by  which  he  hired  the  use  of  the  cows  of  Phillips 
for  a  year,  which  had  not  expired  at  the  time  they  were  taken 
from  the  plaintiff's  possession,  by  the  defendant.  The  defend- 
ant claims  the  property  under  a  chattel  mortgage  executed  by 
Phillips  to  one  Kellogg,  on  the  4th  day  of  December,  1852,  to 
secure  the  payment  of  J|170.92  in  six  annual  payments.  This 
mortgage  was  assigned  by  Kellogg  to  the  defendant,  on  the  3d 
day  of  May,  1853,  and  the  cows  were  taken  from  the  plaintiff's 
possession  by  the  defendant,  a  few  days  after  the  assignment  of 
the  mortgage  to  him.  The  precise  time  when  the  cows  were 
hired  by  the  plaintiff  of' Phillips  is  not  stated  in  the  case,  but 
it  is  apparent  from  all  the  evidence,  and  particularly  from  that 
given  by  the  plaintiff  on  the  question  of  damages,  that  the  con- 
tract of  hiring  was  made  in  the  spring  of  1853,  after  the  execu- 
tion of  the  mortgage  under  which  the  defendant  claims.  This 
fact  was  virtually  conceded  by  both  parties  at  the  trial,  and 
n  ust  be  assumed  here. 

The  question  then  is,  had  the  defendant  a  right  under  the 
mortgage  to  take  the  property  therein  described,  before  the 
mortgagee's  debt  became  due  ')  The  mortgage  is  in  the  usual 
form,  and  transfers  the  legal  title  to  the  property  to  the  mort- 
gagee. By  the  first  clause  of  the  condition  this  title  is  made 
defeasible  upon  the  payment  of  the  mortgage  debt  according  to 

A'oL.  XX.  78 


GLS  CASES  IN  THE  SUPKEME  COURT. 

Rich  'V.  Milk.  * 

the  terms  of  the  condition.  The  condition  also  contains  another 
clause,  providing  that  if  default  be  made  in  such  payment,  or 
if  the  mortgagee  shall  at  any  time  deem  himself  in  danger  of 
losing  his  debt  by  delaying  the  collection  thereof  until  it  be- 
comes payable,  he  may  take  possession  of  the  property  at  any 
time,  before  or  after  the  time  limited  for  the  payment  of  such 
de])t,  and  sell  the  property  or  so  much  thereof  as  shall  be  neces- 
sary to  satisfy  the  debt  and  reasonable  expenses. 

If  the^condition  of  the  mortgage  had  contained  the  usual  clause 
of  defeasance  merely,  there  can  be  no  doubt  that  the  mortgagee, 
in  whom  the  legal  title  to  the  property  was  vested  by  the  mort- 
gage, would  have  had  the  right,  by  virtue  of  such  title,  to  take 
and  retain  the  possession  of  the  property  until  the  payment  of 
the  mortgage  debt.  But  it  is  claimed  by  the  plaintiff,  that  the 
clause  giving  the  mortgagee  the  right,  in  case  he  shall  deem 
himself  in  danger  (fee,  to  take  and  sell  the  property  and  pay 
the  mortgage  debt,  by  implication  gives  the  mortgagor  the 
right  to  retain  the  possession  until  the  happening  of  that  con- 
tingency. The  argument  is  that  it  is  apparent  from  this  clause 
that  such  was  the  intent  of  the  parties.  It  is  certainly  remark- 
able that  the  intent,  if  it  existed,  to  secure  such  a  right  to  the 
mortgagor,  should  be  found  so  obscurely  shadowed  forth,  or 
rather  so  ingeniously  concealed  in  a  stipulation  which  in  all  its 
terms  relates  exclusively  to  the  rights  of  the  mortgagee.  It  is 
said  that  if  the  mortgagee  had  the 'title  and  the  consequent 
right  to  take  possession  of  the  property,  independent  of  such  a 
stipulation,  the  parties  could  have  had  no  other  object  in  insert- 
ing it  than  to  limit  the  exercise  of  that  right.  But  a  little  at- 
tention to  the  terms  of  the  stipulation  will  show  that  it  materi- 
ally enlarges  the  rights  of  the  mortgagee,  and  gives  him  remedies 
which  he  would  not  have  had  under  a  mortgage  which  did  not 
contain  this  clause.  Under  a  mortgage  of  the  latter  description 
he  would  take  a  title  to  the  property,  defeasible  upon  the  per- 
formance of  the  condition.  Upon  a  failure  in  such  performance, 
the  title  would  become  absolute  at  law,  and  the  mortgagor's  only 
remedy,  if  any,  would  be  by  a  bill  in  equity  to  redeem.  This 
equity  of  redemption  could  be  foreclosed  by  the  mortgagee  either 


NIAGARA— SEPTEMBER,  1855.  Q\Q 

Rich  V.  Milk. 

by  a  bill  filed  for  that  purpose,  or  by  the  shorter  process  of  a 
sale  of  the  mortgaged  property,  on  reasonable  notice  to  the 
mortgagor,  after  default.  {Charter  v.  Stevens,  3  Denio,  33.) 
But  by  virtue  of  the  stipulation  in  question,  the  mortgagee, 
if  he  deems  himself  in  danger  of  losing  his  debt  by  delaying  its 
collection,  may  proceed  and  foreclose  the  rights  of  the  mortgagor 
before  any  default  on  his  part.  It  is  plain,  therefore,  that  the 
power  conferred  upon  the  mortgagee  by  this  stipulation  Avas  in- 
tended as  a  cumulative  remedy  merely,  and  that  it  was  not 
intended,  and  cannot  be  held  to  qualify  the  mortgagee's  right, 
as  the  legal  owner,  to  the  possession  of  the  property,  at  all  times. 
before  the  performance  of  the  condition  which  defeats  his  title. 

It  follows  that  the  defendant  below  had  a  right  to  take  pos- 
session of  the  property  in  question  and  to  retain  it  as  against 
the  mortgagor  and  all  claiming  under  him,  during  all  the  time 
that  the  plaintiff  claimed  it  under  his  contract  with  the  mort- 
gagor. It  is  unnecessary  to  decide  whether  the  mortgagee, 
when  he  exercises  the  power  conferred  by  the  clause  in  question, 
must  prove  the  happening  of  the  contingency  mentioned  in  the 
stipulation.  This  is  a  question  in  which  the  plaintiff  has  no 
interest.  The  defendant  had  a  right  to  take  and  detain  the 
property  as  against  him,  and  if  he  has  sold  it  without  right  and 
foreclosed  the  mortgagor's  rights,  he  is  answerable  to  the  mort- 
gagor, but  not  to  the  plaintiff. 

The  judgment  of  the  county  court,  and  that  of  the  justice's 
court,  must  be  reversed. 

[Niagara  General  Term,  September  3,  1855.  Bowen,  Midleti  and  Grttne^ 
Justi(«s.' 


20    630 
7ha56 


(320  CASES  IN  THE  SUPREME  COURT. 


Griffith  vs.  Follett. 

In  an  action  to  recover  damages  for  a  neglect  of  duty  by  the  defendant  as  canal 
commissioner,  the  complaint  alleged  that  the  defendant  being  canal  commis- 
sioner, it  was  his  duty  to  repair  the  banks  of  the  canal  at  the  place  where  the 
injury  was  sustained.  Held  that  this  allegation  of  the  defendant's  official 
character  was  made  for  the  x)urpose  of  charging  him  with  the  duty  for  a  neg- 
lect of  which  the  action  was  brought ;  and  that  if  any  neglect  of  official  duty 
which  rendered  him  liable  to  an  action,  in  any  form,  was  alleged,  the  action 
was  properly  brought  against  him  in  his  private  character  ;  and  that  the  several 
causes  of  action  were  properly  united. 

Held  also,  that  it  was  no  objection  to  the  complaint,  that  it  did  not  contain  any 
averment  that  the  defendant  had  funds  sufficient  to  repair  the  banks  of  the 
canal. 

The  question,  as  to  the  liability  of  a  canal  commissioner,  for  a  neglect  of  duty, 
depends,  in  each  case,  upon  the  character  of  the  duty  which  the  statute  has 
imposed  upon  him.  If  it  is  imperative,  and  specific,  the  commissioner  is  re- 
sponsible to  anj'  person  who  has  sustained  an  injury  in  consequence  of  his  neg- 
lect of  duty. 

But  if  the  duty  is  to  be  discharged  according  to  the  discretion  and  judgment 
of  the  commissioner,  he  cannot  be  held  responsible  to  a  party  who  has  sus- 
tained an  iiijury  either  by  the  manner  in  which  he  discharges  it,  or  by  a 
neglect  to  do  any  particular  act  falling  within  the  general  scope  of  his  duties. 

A  canal  commissioner  is  to  examine  the  works  committed  to  his  charge,  and 
from  such  examination  he  is  to  ascertain  and  determine,  that  is,  decide  as  to 
the  necessity  for  any  particular  repair,  and  act  accordingly. 

It  is  not  his  duty  to  make  repairs  when,  or  as,  he  may  be  requested  or  advised 
by  others.  But  as  to  the  necessity  of  sucli  repairs,  their  nature  and  extent, 
and  the  time  when  they  are  to  be  made,  he  is  to  be  guided  by  his  own  judg- 
ment. And  his  judgment  is  conclusive,  upon  the  question,  and  cannot  bt< 
called  in  question  collaterally,  in  an  action  brought  by  a  party  who  has  sus- 
tained an  injury  by  the  commissioner's  neglect  to  act,  in  any  particular  case. 

There  is,  however,  a  class  of  cases  in  relation  to  which  the  duty  of  the  commis- 
sioner is,  in  its  nature,  absolute  and  certain.  Thus,  when  the  navigation  of 
the  canal  is  interrupted  or  impeded  bj'  any  obstruction  of  the  channel,  or  by 
the  destruction  of  any  bank  or  structure,  the  necessity  for  immediate  repairs 
is  apparent,  and  the  duty  of  the  commissioner  to  make  them  is  imperative. 

He  has  no  discretion  to  exercise,  in  such  a  case,  as  to  the  necessity  of  repairing, 
but  is  bound  to  make  the  repairs  without  delay  ;  and  for  a  neglect  to  make 
them,  after  notice  of  the  facts  showing  tlieir  necessity,  the  commissioner  is 
liable  to  any  party  injured  by  the  neglect. 

A  PPEAL  from  an  order  made  at  a  special  term,  sustaining  a 
XX  demurrer  to  tlie  first  and  second  counts  of  the  complaint, 
and  overrulins:  the  demurrer  as  to  the  other  counts. 


NIAGARA— SEPTEMBER,  1855.  621 

Griffith  V.  Follett. 

The  first  count  of  the  complaint  alleged  that  at  the  several 
times  therein  mentioned,  the  defendant  was  a  canal  commission- 
er of  the  state  of  New  York,  and  had  section  No.  14  of  the 
Erie  canal  under  his  charge  ;  and  that  as  such  commissioner, 
it  was  his  duty  to  keep  the  said  section  in  such  repair  that 
canal  boats  might  navigate  the  same  safely.  That  for  a  long 
time  before  the  18th  day  of  September,  1853,  the  defendant  neg- 
ligently  and  carelessly,  and  not  regarding  his  duty  in  that 
behalf,  suffered  the  banks  of  the  canal  upon  the  said  section 
to  become  weak  and  dangerous  so  "  that  there  was  great  dan- 
ger that  a  break  would  occur  therein,  at  the  place  where  the 
break  mentioned  in  the  first  count  did  occur,  and  so  that  it  was 
dangerous  and  unsafe  for  canal  boats  to  navigate  that  part  of 
the  canal,  and  that  they  could  not  navigate  the  same  without 
danger  of  loss  and  damage  to  said  boats  and  their  cargoes  ;  of  all 
which  the  defendant  had,  notice  and  which  he  well  knew. 
That  the  defendant  negligently  and  carelessly  permitted  the 
said  bank  to  remain  weak  and  dangerous  and  without  repair, 
until  the  said  18th  day  of  September,  when  -a  break  occurred 
in  said  bank  by  reason  of  such  negligence.  That  when  the 
said  break  occurred,  a  canal  boat  belonging  to  the  plaintiff  was 
navigating  that  part  of  the  canal,  laden  with  a  cargo  of  wheat, 
and  that  by  means  of  said  break  said  canal  boat  was  sunk  and 
broken  and  the  boat  and  its  cargo  lost  to  the  plaintifi".  The 
second  count  contained  the  same  averments  as  the  first,  and  the 
additional  averments  that  at  the  several  times  stated  in  the  first 
count  the  defendant  as  commissioner,  had  sufficient  funds  in  his 
hands  to  repair  the  bank  in  question,  and  that  he  negligently 
and  carelessly  sufi"ered  the  bank  to  become  and  remain  weak 
and  dangerous  "without  expending  or  applying  any  of  the 
money  aforesaid  in  or  about  its  repair,  until  after  the  break  in 
question  occurred."  The  third  count  alleged  the  ownership  of  a 
canal  boat  by  the  plaintiff,  that  he  intended  to  carry,  in  the 
same,  on  said  canal,  a  cargo  of  wheat,  and  that  the  defendant 
destroyed  and  converted  the  boat  to  his  own  use  and  thereby 
hindered  the  plaintiff  from  carrying  the  said  cargo,  whereby  the 
plaintiff  lost  said  boat  and  the  freight  that  he  might  have  earn- 


622  I^  THE  SUPREME  COURT. 

Griffith  V.  FoUett. 

ed  on  said  cargo.     The  fourth  count  was  in  trover,  for  the  con 
version  of  a  canal  boat,  by  the  defendant. 

To  the  first  and  second  counts  the  defendant  demurred,  first 
on  the  ground  that  they  did  not  set  forth  a  cause  of  action  ;  and 
second,  that  there  was  a  defect  of  parties  in  that  the  defendant 
should  have  been  sued  as  canal  commissioner,  and  not  in  his 
individual  capacity.  There  was  also  a  demurrer  to  the  whole 
complaint,  on  t}ie  ground  that  several  causes  of  action  had  been 
improperly  joined.  The  demurrer  to  the  first  and  second 
counts,  on  the  ground  that  they  contained  no  cause  of  action, 
was  sustained.  The  demurrer  for  defect  of  parties  and  for 
non-joinder  was  overruled,  and  both  parties  appealed. 

Geo.  B.  Hibbard,  for  the  plaintiff.  I.  The  general  rules  as 
to  the  liability  of  officers  are  these  :  (1.)  A  public  officer  who  is 
by  law  required  to  act  in  certain  cases  according  to  his  judg- 
ment or  opinion,  sworn  to  discharge  his  duties,  and  subject  to 
penalties  for  neglect,  is  not  liable  to  a  party  for  an  omission 
arising  from  neglect  or  want  of  skill,  if  acting  bona  fide.  {Bac. 
Abr.  art.  Office  and  Officers,  O,  and  cases  cited.)  (2.)  An 
officer  intrusted  by  the  common  or  statute  laAV  is  liable  to  an 
action  for  negligence  in  the  performance  of  his  tfust  or  duty,  oi 
for  fraud  orneglect  in  the  execution  of  his  office.  {Bacon^s  Abr 
art.  Offcc  and  Officers,  O,  and  ca.^es  cited.) 

II.  The  first  ground  of  demurrer  is  not  well  taken.  {See  1 
R.  S.  220,  §  IT,  [18.)  ''Whenever  in  the  opinion  of  the  canal 
commissioners  it  shall  become  necessary  or  expedient  to  make 
any  extraordinary  repairs  or  improvements  on  any  completed 
canal,  such  as  the  opening  of  new  feeders,  or  the  construction 
of  additional  locks,  dams,  embankmetits,  tunnels  or  aqueducts,'' 
It  shall  be  their  duty  to  make  out  plans,  submit  them  to  the 
board,  and  when  the  board  or  the  legislature  shall  order  thedvi, 
&c.  to  carry  them  out.  {See  1  R.  S.  221,  §  23,  [§  25;]  §§  99, 
100,  p.  236.)  "Whenever  the  navigation  of  any  of  the  canal?, 
shall  be  interrupted  or  endangered,  it  shall  be  the  duty  of  tha 
commissioners,  without  delay,  to  repair  the  injury  causing  or 
threatening  such  interruption,  and  for  that  purpose  they  shall 


MAGARA— SEPTEMBER,  1855.  623 

Griffith  V.  Follett. 

have  power  to  enter  upon  and  use  any  contiguous  lands,  and  to 
procure  therefrom  all  sucb  materials  as  in  their  judgment  may 
be  necessary  or  proper  to  be  used  in  making  such  repairs." 
(See  1  R.  S.  222,  §  29,  [33].)  The  previous  section  having  said 
that  the  canal  board  "  shall  from  time  to  time  assign  to  each  act- 
ing  commissioner  in  special  charge  the  line  or  portion  of  the 
line  of  one  or  more  of  the  canals,"  the  section  referred  to  says, 
"  it  shall  be  the  duty  of  each  acting  commissioner,  1.  To  exam' 
ine  frequently  and  carefully  into  the  state  of  the  canals  and 
works  committed  to  his  charge.  2.  To  direct  and  cause  to  be 
made  such  ordinary  repairs  as  he  shall  perceive  to  be  necessary. 
3.  To  superintend  and  cause  to  be  made  such  extraordinary 
repairs  or  improvements  as  shall  be  ordered.  4.  To  make  by 
himself,  or  a  superintendent  of  repairs,  all  necessary  contracts 
for  the  supply  of  materials  and  the  performance  of  labor."  The 
repairs  which  were  omitted  to  be  made  were  "  ordinary  repairs." 
{See  Laivs  of  1834,  p.  787.)  But  whether  technically  ordinary 
repairs  or  not,  yet  in  the  precise  case  stated  in  the  complaint, 
the  defendant  is  liable  for  the  infraction  of  duty  prescribed  by 
the  second  section  above  quoted.  (*S'ee  Adsit  v.  Brady,  4  Hill, 
630,  and  cases  and  statutes  referred  to.  Wilson  v.  The  Mayor 
of  New  York,  1  Denio,  595.) 

III.  The  second  ground  of  demurrer  is  not  well  taken.  {See 
authorities  cj'C.  iiuder  last  point.) 

TV.  The  third  ground  of  demurrer  is  not  well  taken.  The 
law  will  presume  that  the  plaintiiF  was  rightfully  in  the  canal, 
till  the  contrary  is  shown.  The  complaint  alleges  that  the 
plaintiff  was  not  in  fault.  He  is  alleged  to  have  been  in  busi- 
ness lawful  to  be  done,  and  so  recognized  by  many  general  laws. 
Tt  would  be  the  statement  of  a  conclusion  of  law  and  therefore 
improper.     (5  Sand.  507.) 

V.  The  fourth  ground  of  demurrer  is  not  well  taken.  {See 
authorities,  tj'c.  under  point  1.)  The  authorities  relied  upon 
for  showing  that  it  is  necessary  to  allege  funds  in  the  hands  of 
the  defendant  are  cases  where  the  officers  did  not  have  power  to 
raise  funds.  In  this  case  the  defendant  not  only  had  means 
supplied  by  law,  but  ample  power  to  complete  all  repairs.    (aS^* 


Cy24  CASES  IN  THE  SUPREME  COURT. 

Griffith  V.  FoUett. 

Adsit  V    Brady,  4  Hill,  630,  and  cases  and  statutes  refer- 
red, to.) 

VI.  The  first,  second,  third  and  fourth  causes  of  demurrer  to 
the  second  count  are  badly  taken,  for  the  reasons  specified  under 
point  2.  It  is  also  made  a  cause  of  demurrer,  that  "  there  is  a 
defect  of  parties,"  in  this,  that  the  defendant  is  sued  as  an  '•  in- 
dividual," and  not  as  an  officer.  This  is  bad,  for  the  reason  that 
he  is  not  sued  as  an  officer,  or  as  a  quasi  corporation  with  an  offi- 
cial fund  to  resort  to.  He  is  sued  as  an  individual,  and  his  de- 
scription as  an  officer  has  nothing  to  do  with  his  character  as 
defendant.  His  holding  the  office  and  neglect  of  its  duties  are 
the  very  elements  of  the  action,  and  these  are  stated.  There  is 
no  such  "  defect  of  parties,"  or  any  other  good  cause  of  demur 
rer,  in  this  particular. 

VII.  The  last  alleged  cause  of  demurrer  is  not  well  taken. 
(1.)  The  matters  stated  in  the  different  counts  are  "evidently" 
"transactions  connected  with  the  same  subject  of  action."  {See 
Code,  §  167,  sub.  1.)  (2.)  The  causes  of  action  are  for  injuries 
"  with  or  without  force  to  property."  («S'ee  Code,  §  167,  sub.  1 ; 
Rodger s  v.  Rodger s,  11  Barb.  595.) 

W.  G.  Bryan,  for  the  defendant.  I.  The  first  and  second 
counts  are  identical,  except  that  the  first  omits  to  state  that  the 
defendant  had  funds  sufficient  to  make  the  repairs  alleged  to 
have  been  necessary,  <fec.  We  will  first  discuss  the  question 
whether,  (conceding  defendant  to  have  had  funds,  and  the  boat 
to  have  been  lawfully  navigating  the  canal,)  there  is  any  legal 
liability  as  against  the  defendant  to  make  good  the  plaintiff's  loss. 
The  action  is  novel  and  without  precedent.  Canal  breaks  and 
detentions  are  disasters  constantJ|r  occurring.  It  is  believed  the 
commissioners  have  never  before  been  prosecuted  as  personally 
liable  therefor.  The  novelty  of  a  particular  action  or  defense 
when  the  facts  on  which  it  is  founded  are  of  common  occurrence, 
is  a  strong  argument  that  it  cannot  be  upheld.  {Costigan  v. 
The  Mohawk  and  Hudson  R.  R.  Co.,  2  Denio,  609.)  "  This 
fact  [that  no  similar  action  had  ever  been  brought]  affords  a 
very  strong  presumption  that  no  such  action  will  lie."     {Bart 


"NTAGARA— SEPTEMBER,  1855.  Cl!5 

(Jiiffith  V.  Follett. 

lett  V.  Crozier,  IT  John.  451.)  Before  a  party  can  bring  an 
action  for  official  negligence  he  must  show  a  legal  duty  peculiar 
to  himself  and  a  particular  obligation  to  himself.  {Bank  of 
Rome  V.  Mott,  17  Wend.  555.)  No  particular  right  of  the 
defendant  has  been  violated.  There  must  be  a  particular  right, 
as  well  as  a  particular  injury.  It  pertains  to  the  public  only 
to  avenge  the  injury.  (Butler  v.  Kent,  19  John.  223.  Spear 
V.  Cummings,  23  Pick.  226.)  The  canals  are  not  public 
highways,  and  boats  can  only  navigate  them  by  special  per- 
mission, and  on  compliance  with  statute  regulations.  (1  R.  S. 
2d  ed.  p.  271,  §§  156,  162.  Hart  v.  The  Mayor  of  Albany, 
9  Wend.  571.)  Canal  breaks,  slides,  <fec.  are  perils  of  navigation 
against  which  neither  the  state  nor  its  officers  are  insurers.  The 
forwarder  takes  the  canal  as  it  is,  subject  to  all  accidents.  His 
policy  of  insurance  is  protection  against  dangers  of  inland  nav- 
igation. If  this  action  will  lie,  then  the  least  error  of  judgment 
or  inattention  would  subject  the  canal  commissioner  to  respon- 
sibilities so  enormous  and  dangerous  that  no  rational  man  would 
venture  to  accept  such  a  trust.  If  liable  for  a  mere  omission, 
then  any  evidence  tending  to  show  knowledge  of  the  necessity  of 
repairs,  with  funds  <fcc.,  would  expose  the  commissioner  to  heavy 
verdicts. 

II.  Necessity  for  repairs  involves  the  matter  of  discretion,  a 
quasi  judicial  act,  and  for  omission  to  direct  repairs  no  action 
will  lie.  unless  it  be  willful  or  malicious.  He  is  made  a  judge 
of  the  necessity  for  repairs,  <fcc.,  and  his  action  is  therefore 
not  purely  ministerial.  By  implication  this  doctrine  is  sanc- 
tioned in  Adsit  V.  Brady,  (4  Hill,  632,)  which  is  the  case  on 
which  the  plaintiff  relies.  Bronson,  J.,  says  :  •'  It  is  said  the 
defendant  has  a  discretion  as  to  what  repairs  were  needed,  and 
consequently  that  his  neglect  should  have  been  charged  to  be 
willful  and  malicious.  (8  Wend.  462.)  But  clearly  he  had  no  dis- 
cretion to  leave  this  dangerous  obstruction  in  the  canal."  All 
that  case  decides  is  that  the  neglect  of  a  superintendent  of  re- 
pairs to  remove  a  conceded,  palpable  obstruction  was  willful. 
There  is  an  obvious  distinction  between  neglecting  to  repair  to 
an  extent  adequate  to  prevent  injury,  and  a  refusal  to  remove  a 

Vol.  XX.  79 


Fj26  cases  in  the  supreme  court. 

Griffith  V.  Follett, 

dangerous  obstruction  actually  existing.  The  one  is  a  present 
necessity,  the  other  a  prospective  or  possible  necessity.  Be- 
sides, by  1  R.  )S.  p.  277,  §  210,  it  is  made  the  special  duty  nf 
the  commissioner,  superintendent  &.C.,  to  seize  any  floating  or 
sunken  thing  which  may  be  found  in  a  canal.  The  words 
"  perceive  to  be  necessary"  are  the  same  in  legal  significance  as 
the  words  "shall  deem"  and  "shall  in  their  judgment  be  neces- 
sary." as  used  in  1  R.  S.  p.  248,  §  17,  or  "  shall  be  deemed 
necessary,"  in  §  21,  or  "  as  in  their  judgment  may  be  necessary 
or  proper,"  as  used  in  §  25.  There  is  no  real  parallel  between 
the  duty  and  liability  of  commissioners  of  highways  and  that 
of  canal  commissioners.  The  first  have  but  a  few  miles  of 
common  highway  to  supervise,  in  their  own  neighborhood,  and 
their  duties  in  reference  to  them  are  of  the  plainest  nature, 
The  second  have  a  territory  so  large  that  it  can  very  seldom  be 
under  their  own  eye,  and  many  of  their  duties  require  the  aid 
of  experts  in  engineering,  hydraulics,  dec.  The  proper  height 
and  strength  of  banks,  &c.  call  for  the  exercise  of  skill  and 
judgment.  Their  duties  oflF  the  canal  as  members  of  the  canal 
and  contracting  boards,  and  board  of  canal  commissioners,  are 
most  onerous.  See  art.  2,  general  powers  and  duties  of  the 
canal  commissioners,  and  art,  4,  of  the  canal  board,  their  powers 
and  duties."  But  no  private  action  will  lie  against  even  an 
overseer  or  commissioner  of  highways  for  neglect  to  keep  the 
public  bridges  in  repair.  {Bartlett  v.  Crosier,  above  cited.) 
Nor  would  it,  at  common  law.  {Mower  v.  Leicester,  9  Mass. 
247,  and  23  Pick.  226,  above  cited.)  It  is  believed  that  no 
precedent  can  be  found  for  any  action  against  a  public  officer  at 
all  resembling  this,  unless  the  omission  complained  of  is  aver- 
red to  be  loillful  or  malicious.  There  is  no  such  allegation  in 
the  two  first  counts,  and  therefore  those  counts  are  bad.  Mere 
negligence,  however  gross,  can  never  be  equivalent  to  malice. 
(Morse  v.  The  Auburn  and  Syracuse  R.  R.  Co.,  10  Barb.  621.' 
It  is  submitted  that  the  statute  would  have  declared  the  extra- 
ordinary liability  contended  for  by  the  plaintiff  if  it  Avas  to 
exist ;  but  the  statute  affixes  no  penalty  and  creates  no  action. 
III.  If  any  state  officer  is  personally  liable  for  the  injury 


NIAGARA— SEPTEMBER,  1855.  527 

Griffith  V.  Follett. 

sustained  by  the  plaintiff,  it  is  the  superintendent  of  repairs, 
and  not  the  canal  commissioner  ;  the  special  and  particular 
duty  of  repairing  devolves  primarily  upon  the  superintendent. 
"  It  is  the  duty  of  each  superintendent  to  keep  in  repair  such 
section  as  shall  be  committed  to  his  charge,  to  make  all  neces- 
sary contracts  for  that  purpose,"  «fec.  (1  R.  S.  Sd  ed.  p.  269, 
§  145.)  He  is  under  the  direction  of  the  canal  commissioners. 
"  that  is,  the  general  direction  ;  not  in  every  act  which  he  does 
specifically,  nor  need  he  wait  to  hear  from  the  commissioners 
before  stopping  a  breach."  {Shepherd  v.  Lincoln,  17  Wend. 
250.  M'Fadden  v.  Kingsbury,  11  id.  667.)  The  superin- 
tendent is  not  a  deputy  of  the  commissioners,  and  before  he  can 
justify  an  apparent  neglect  of  duty,  he  must  show  that  the 
omission  resulted  from  obedience  to  orders.  It  will  not  be  pre- 
sumed that  they  gave  an  illegal  command.  (4  Hill,  633.)  The 
two  cases  relied  on  by  the  plaintiff  to  sustain  this  action  were 
against  a  superintendent  of  repairs.  The  1st,  in  17th  Wen- 
dell, for  misfeasance  in  not  avoiding  negligence  in  the  repairs 
he  was  prosecuting.  He  had  entered  upon  his  work  and  the 
injury  arose  from  his  mismanagement — from  positive  acts  of 
b*.s  servants  which  the  court  held  him  accountable  for.  The 
2d,  in  4th  Hill,  630,  for  not  removing  what  the  court  termed  a 
'•  dangerous  obstruction,"  "  a  nnisance."  The  plaintiff  evident- 
ly feels  the  force  of  this  reasoning,  for  he  brought  a  precisely 
similar,  a  twin  action,  for  the  same  injury,  against  the  superin- 
tendent of  repairs,  and  it  is  now  pending. 

IV.  The  plaintiff  should  have  averred  in  terms  that  the  re- 
pairs needed  were  ordinary  repairs.  If  they  were  extraordi- 
nary they  must  be  ordered  by  the  canal  board.  (2  R.  S.  ^d 
4f}.  p.  248,  §  18;  /).  251,  sub.  3,  §  3.)  A  new  or  additional  em- 
ia^kment  might  be  required,  and  that  it  was  not,  appears  (if  at 
aJ))  only  by  inference. 

V.  It  does  not  appear  that  the  plaintiff's  boat  was  lawfully 
navisratinff  the  canal.  If  not,  the  defendant  owed  no  duty  to  it. 
Every  boat  must  first  obtain  certificate  of  registry,  ifec.  (1  R.  S. 
271;  §  156.)  No  boat  shall  be  cleared  without  such  certificate, 
(§§162,  165.)     The  allegation  that  the  injury  happened  without 


628  CASES  IN  THE  SUPREME  COURT. 

Griflith  v.  Follett. 

the  plaintiff's  fault,  <fec.  is  not  equivalent  to  the  averment  emitted. 
He  should  declare  himself  to  be  rightfully  there. 

VI.  The  first  count  is  bad  because  it  omits  to  aver  that  the 
defendant  had  in  his  hands  or  under  his  control  money  or  funds 
wherewith  to  make  the  repairs,  [Bartlett  v.  Crosier^  17  John. 
439.)  It  is  no  answer  to  this  objection  that  the  defendant  had 
power  to  make  contracts  for  materials  and  labor.  He  can  have 
in  the  whole  but  $10,000  on  hand  at  anyone  time,  (§  44,)  to 
meet  the  numerous  and.  heavy  demands  upon  hmi.  It  should  be 
averred  as  in  the  2d  count,  that  he  had  sufficient  moneys  or 
available  means  unexpended,  at  the  very  time,  to  meet  the  enor- 
mous expenses  attending  the  prevention  or  reparation  of  canal 
breaks.  That  part  of  the  decision  of  the  learned  justice  at  spe- 
cial term  which  held  that  neither  the  1st  or  2d  counts  "  stated 
facts  sufficient  to  constitute  a  cause  of  action,"  was  right  and 
should  be  affirmed. 

VII.  The  defendant  should  have  been  sued  in  his  name  of  of- 
fice and  not  as  an  individual.  That  is  the  ordinary  form  of 
proceeding  against  officers  for  neglects  of  strictly  official  dutj'. 
There  is  therefore  a  defect  of  parties  in  the  1st  and  2d  counts. 
For  willful  trespass  he  could  be  sued  as  an  individual,  but  not 
for  a  m.ere  omission  to  perform  purely  official  acts. 

VIII.  If  the  allegations  in  the  first  two  counts  as  against  the 
defendant  as  canal  commissioner  are  to  be  taken  as  applying  to 
all  the  counts,  then  the  3d  and  4th  are  bad,  inasmuch  as  they 
are  drawn  against  the  defendant  as  an  individual,  and  not  as  an 
officer.  If  not  to  be  so  taken,  they  are  bad  as  being  improperly 
joined  with  the  3d  and  4th  counts.  The  3d  and  4th  are  in  tres- 
pass for  acts  necessarily  and  per  se  willful ;  the  1st  and  2d  can 
only  be  sustained  on  the  ground  that  they  are  in  legal  effect  the 
same  as  if  the  defendant  Avere  proceeded  against  in  his  name  of 
office  in  the  summons  and  complaint.  If  so,  how  can  they  prop- 
erly be  joined  and  tried  with  the  naked  trespass  alleged  in  the 
3d  and  4th?  Such  a  construction  would  lead  to  great  embar- 
rassment and  confusion  at  the  circuit,  and  cannot  be  within  the 
spirit  and  intent  of  section  167  of  the  code. 


NIAGARA— SEPTEMBER,  1855.  (529 

Griffith  V.  Follett. 

Bi/  the  Court.  Greene,  J.  The  causes  of  action  disclosed  by 
the  first  and  second  counts,  if  any,  are  not  against  the  defendant 
in  his  official  character.  It  is  alleged  that  heius[  canal  com- 
missioner  it  was  his  duty  to  repair  the  bank  in  question.  This 
allegation  of  his  official  character  is  made  for  the  purpose  of 
charging  liim  with  the  duty  for  a  neglect  of  which  the  action 
is  brought,  and  if  any  neglect  of  official  duty  which  renders  him 
liable  to  an  action  in  any  form,  is  alleged,  the  action  is  properly 
brought  against  him  in  his  private  character.  I  think  the  sev- 
eral causes  of  action  are  properly  united,  and  that  the  demurrer, 
80  far  as  it  is  founded  on  the  alleged  defect  of  parties  and  mis- 
joinder of  counts,  was  correctly  overruled. 

The  important  question  in  this  case  is,  whether  a  cause  of  ac- 
tion is  alleged  in  either  of  the  first  two  counts.  The  case  of 
Adsit  V.  Brady,  (4  Hill,  630,)  is  a  decisive  authority  against 
the  objection  to  the  first  count  that  it  contains  no  averment  that 
the  defendant  had  funds  sufficient  to  repair  the  bank  in  ques- 
tion. With  the  exception  of  this  unnecessary  averment,  which 
the  second  count  contains,  the  two  counts  are  identical  in  sub- 
stance, and  may  be  examined  together. 

The  general  powers  and  duties  of  canal  commissioners  are 
prescribed  by  article  second  of  title  nine  of  chapter  nine,  part 
first  of  the  revised  statutes.  (2  R.  S.  219.)  The  9th  section 
provides  that  "  the  general  care  and  superintendence  of  the  ca- 
nals shall  continue  to  be  vested  in  the  board  of  canal  commis- 
sioners :  so  many  of  whom  (not  less  than  two  nor  more  than 
three,)  as  may  be  designated  by  the  board,  shall  be  acting  com- 
missioners." The  23d  section  provides  that  "whenever  the 
navi<Tation  of  any  of  the  canals  shall  be  interrupted  or  endan- 
gered,  it  shall  be  the  duty  of  the  commissioners,  Avithout  delay, 
to  repair  the  injury  causing  or  threatening  such  interruption.'' 
The  28th  section  provides  that  "  the  board  shall  from  time  to 
time  assign  to  each  acting  commissioner,  in  special  charge,  the 
line  or  portion  of  the  line,  of  one  or  more  of  the  canals."  The 
29th  section  provides  that  "  it  shall  be  the  duty  of  each  acting 
commissioner,  1st,  to  examine  frequently  and  carefully  into  the 
Btatc  of  the  canals  and  works  committed  to  his  charge ;  2d,  to 


630  OASES  IN  THE  SUPKEME  COURT. 

Griffith  V.  Follett. 

direct  and  cause  to  be  made  such  ordinary  repairs  as  he  sludl 
poceive  to  be  necessary. ^^  These  are  the  provisions  toucliing 
the  duties  of  canal  commissioners  in  relation  to  repairs,  and 
upon  which  the  plaintiff  relies  to  sustain  his  action.  The  ques- 
tion as  to  the  liability  of  a  commissioner,  for  a  neglect  of  dut}--, 
must  depend  in  each  case  upon  the  character  of  the  duty  which 
the  statute  has  imposed  upon  him.  If  it  is  imperative  and  spe- 
cific, the  delinquent  commissioner  is  responsible  to  any  person 
who  hns  sustained  an  injury  in  consequence  of  his  neglect  of 
duty.     {Adsit  v.  Brady,  above  cited.) 

But  if  the  duty  is  to  be  discharged  according  to  the  discretion 
and  judgment  of  the  commissioner,  he  cannot  be  held  responsi- 
ble to  a  party  who  has  sustained  an  injury  either  by  the  manner 
in  which  he  discharges  it,  or  by  a  neglect  to  do  any  particular 
act  falling  within  the  general  scope  of  his  duties.  It  is  con- 
tended by  the  plaintiff  that  all  of  the  duties  imposed  upon  the 
commissioners  by  the  sections  above  cited  are  imperative  and 
absolute  ;  that  by  the  provisions  of  the  23d  section  their  duty  to 
repair  the  canals  is  the  same  when  there  is  danger  of  an  inter- 
ruption to  navigation,  as  when  there  is  an  existing  interruption. 
This  proposition  is  true  in  its  general  application  to  these  two 
classes  of  repairs.  When  the  necessity  for  repairs  in  either 
case,  is  shown  to  the  commissioner,  it  is  his  duty  "  without  de- 
lay" to  make  them.  But  Avhen  the  navigation  is  in  no  way  in- 
terrupted or  impeded,  how  is  he  to  know  that  it  is  endangered, 
or  that  such  interruption  is  threatened'?  I  think  the  answer  is 
equally  apparent  from  the  nature  of  the  duty  and  the  language 
of  the  statute  which  prescril)e8  it.  He  is  to  examine  the  Avorks 
committed  to  his  charge,  and  from"  such  examination  he  is  to 
ascertain  and  determine,  or  in  other  words  decide  as  to  the  ne- 
cessity for  any  'particular  repair,  and  act  accordingl3\  It  is 
not  his  duty  to  make  repairs  when  or  as  he  may  be  requested  or 
advised  by  others.  As  to  the  necessity  of  such  repairs,  their 
nature  and  extent  and  the  time  when  they  are  to  be  made,  he  is 
to  be  guided  by  his  own  judgment,  not  by  the  advice  or  importu- 
nity of  officious  and  interested  individuals.  His  judgment  in 
such  matters  is  conclusive  upon  the  question,   and  cannot  be 


NIAGARA— SEPTEMiiEPv,  1855.  g3  j 

Griffith  V.  Follett 

called  in  question  collaterally  in  an  action  brought  by  a  party 
who  has  sustained  an  injury  by  the  commissioner's  neglect  to 
act  in  any  particular  case. 

There  is  another  class  of  cases,  in  relation  to  which  the  duty 
of  the  commissioner  is,  in  its  nafare,  absolute  and  certain. 
When  the  navigation  of  the  canal  is  interrupted  or  impeded  by 
any  obstruction  of  the  channel,  or  by  the  destruction  of  any 
bank  or  structure,  the  necessity  for  immediate  repairs  is  appa- 
rent, and  the  duty  of  the  commissioner  to  make  them  is  impera- 
tive. He  has  no  discretion  to  exercise,  in  such  a  case,  as  to  the 
necessity  of  repairing,  but  is  bound  to  make  the  repair  without 
delay.  But  as  to  the  extent  of  the  '  repair  and  the  manner  in 
which  it  shall  be  made,  he  has  the  same  discretion  in  such  a  case 
as  in  the  cases  first  mentioned,  subject,  however,  to  the  condition 
that  the  repair  shall  be  sufficient  to  restore  the  canal  to  a  navi- 
gable state.  For  a  neglect  to  make  such  repairs  after  notice  of 
the  facts  showing  their  necessity,  the  commissioner  would  be 
liable  to  any  party  injured  by  the  neglect.  This  limitation  of 
the  commissioners  liability  necessarily  results  from  the  nature 
of  his  duty.  To  this  extent  he  would  be  liable  on  common  law 
principles,  by  reason  of  the  general  duty  imposed  upon  him  by 
the  statute  to  make  all  needful  repairs.  This  rule  is  consistent 
with  the  character  of  his  duty.  It  protects  him  in  the  inde- 
pendent exercise  of  his  judgment,  by  absolving  him  from  respon- 
sibility for  errors,  and  holds  him  responsible  only  for  a  neglect 
of  clear  and  imperative  duty. 

This  view  of  the  duties  of  the  commissioners  is  in  my  opin- 
ion, sustained  and  clearly  indicated  by  the  provisions  of  the 
statute.  Section  29  provides  that  the  commissioner  shall  ex- 
amine, frequently  and  carefully,  into  the  state  of  the  canals  and 
works  committed  to  his  charge,  and  direct  and  cause  to  be 
made  such  ordinary  repairs  as  he  shall  perceive  to  he  necessary. 
This  is  equivalent  to  saying  that  he  shall  malce  such  repairs  as 
he  shall  deem  or  judge  to  be  necessary.  But  this  general  lan- 
guage, like  that  of  the  23d  section,  must  receive  a  construction 
adapted  to  the  subject  matter  to  which  it  relates.  We  ha^^e 
seen  that  the  necessity  of  certain  repairs   is,  and  must  always 


632  CASES  IN  TDE  SUPREME  COURT. 

Griffith  2).  FoUctt. 

be  a  mere  matter  of  opinion,  and  that  such  necessity'  must  he 
determined  by  the  judgment  of  the  commissioner,  to  wliich  the 
statute  has  confided  it.  On  the  other  hand,  the  necessity  of 
certain  other  repairs  is  clear  and  palpable.  In  re;nrard  to  them 
the  commissioner's  duty  is  equally  clear  and  imperative,  and 
for  its  neglect  he  has  no  excuse. 

These  propositions  are  sustained  and  illustrated  by  the  fol- 
lowing cases.  Adsit  v.  Brady,  was  an  action  brought  against 
a  superintendent  of  repairs  for  neglecting  to  remove  a  canal 
boat  which  had  been  sunk  in  the  canfil,  against  which  the 
plaintiff's  boat  ran  and  was  sunk.  The  declaration  alleged  that 
the  sunken  boat  obstructed,  and  rendered  the  navigation  of  the 
canal  dangerous,  and  that  the  defendant  knew  it  and  neglected 
to  remove  the  obstruction.  In  that  case  it  was  said  that  the 
defendant  had  a  discretion  as  to  what  repairs  were  needed. 
But  the  court  held  that  he  had  no  discretion  in  the  matter  ; 
that  the  boat  being  an  obstruction,  and  the  necessity  of  its  re- 
moval apparent  beyond  all  dispute,  he  was  bound  to  remove  it 
without  delay.  The  case  of  The  Mayor  (^-c.  of  New  York  v. 
Furze,  (3  Hill,  612.)  was  an  action  brought  against  the  city 
of  New  York  for  neglecting  to  keep  certain  culverts  and  sewers 
in  repair,  by  reason  of  which  the  plaintiff's  premises  were  over- 
flowed. By  the  charter  of  the  defendants  it  was  provided  that 
it  should  be  lawful  for  the  corporation  to  cause  common  sewers, 
drains  and  vaults  to  be  made  in  any  part  of  the  cxty.  The  court 
held  the  defendants  liable.  Nelson,  C.  J.,  in  delivering  the  opin- 
ion, laid  down  the  proposition  in  general  terms  that,  although 
the  terms  of  the  statute  were  permissive  only,  as  it  Avas  one  of 
public  concern,  it  was  imperative  and  peremptory  upon  tht 
corporation  ;  and  that  when  the  public  interest  called  for  the 
execution  of  the  power  thus  conferred,  the  defendants  were  not 
at  liberty  arbitrarily  to  withhold  it.  But  independent  of  this 
principle,  the  learned  chief  justice  held  that  after  the  corpora- 
tion had  exercised  the  power,  and  constructed  sewers,  they  were 
bound  to  keep  them  in  repair,  and  that  for  a  neglect  to  repair 
any  known  defects  in  them,  the  corporation  was  liable  to  any 
party  injured  thereby.     The   case   of  Wilson  v.  The  Mayot 


NIAGARA— SEPTEMBER,  1855.       '  533 


Griffitli  V.  Follett. 


^c.  of  Neiv  York,  (1  Denio,  595.)  was  an  action  brought  against 
the  defendants  for  carelessly  raising  and  grading  a  street  oppo- 
site the  plaintiff's  lot,  so  as  to  obstruct  the  flow  of  water  from 
her  premises  and  to  turn  it  on  to  them,  and  for  omitting  tc 
make  any  sewer  or  drain  to  carry  the  water  flowing  from  the 
street,  from  the  plaintiff's  premises.  The  court  held  that  as 
the  corporation  had  power  to  grade  and  construct  the  street, 
and  all  the  proceedings  for  that  purpose  were  regular,  the  plain- 
tiff could  maintain  no  action  for  any  injury  sustained  by  her  in 
consequence  of  the  manner  in  which  the  street  had  been  con- 
structed. It  was  also  held  that  the  action  would  not  lie  for  the 
defendants'  neglect  to  construct  a  sewer,  although  it  was  alleged 
to  be  necessary  in  that  place.  Beardsley,  J.,  in  delivering  the 
opinion  of  the  court,  concurs  with  Nelson,  chief  justice,  in  the 
opinion  expressed  by  him  in  The  Mayor  of  New  Yorkv.Fttrze, 
that  the  provision  of  the  statute  authorizing  the  corporation  to 
construct  drains  and  sewers,  was  in  its  nature  plainly  impera- 
tive. The  learned  justice  says  :  "  it  is  equivalent  to  an  express 
enactment  that  it  shall  be  the  duty  of  the  mayor,  aldcrm.en, 
(^c,  to  make  all  needful  sewers  and  drains  in  said  city.  The 
statute  imposes  not  only  a  moral  but  a  legal  duty  to  that  ex- 
tent, for  a  violation  of  which  the  guilty  individuals  may  be  in- 
dicted and  punished.  But  so  far  as  a  civil  remedy  is  concerned, 
it  is  otherwise.  To  that  extent,  the  decision  of  those  whose 
duty  it  is  to  pass  upon  the  question  is  absolutely  conclusive. 
They  may  err  in  holding  that  the  work  ought  not  to  be  made, 
or  the  decision  may  be  the  result  of  culpable  neglect  or  corrup- 
tion ;  still  the  law  has  authorized  them  to  determine  the  ques- 
tion, and  it  will  not  permit  their  decision  to  be  overhauled  in  a 
civil  action." 

I  think  the  distinction  between  the  cases  cited,  Avhere  the  de- 
fendants have  been  held  liable,  and  the  case  under  consideration, 
is  clear.  In  one  of  those  cases,  the  navigation  of  the  canal  was 
impeded  and  endangered  by  an  obstruction  visible  and  apparent 
to  all  ;  in  the  other  the  sewers  which  the  defendant  was  bound 
to  keep  in  repair  were  obstructed  and  filled  up  so  that  they 

Vol.  XX.  80 


63  1  CASES  IN  THE  SUPREME  COURT. 

Griffith  V.  Follett. 

would  not  carry  off  the  water  from  tlie  street.  In  this  case, 
also,  the  necessity  for  the  repair  was  apparent  and  the  duty 
was  clear.  But  in  the  case  at  bar  the  facts  are  different.  No 
obstruction  or  impediment  to  the  navigation  oi  the  canal  is 
averred.  It  is  alleged  that  the  bank  was  weak  and  dangerous; 
that  there  was  great  danger  that  a  break  would  occur,  and  that 
in  consequence  of  the  weakness  of  the  bank  and  danger  of  a 
break,  the  navigation  was  dangerous  ;  and  that  the  defendant 
had  notice  of  these  facts.  The  substance  of  this  averment  is 
that  the  defendant  knew  the  condition  of  this  bank ;  that  it 
was  in  fact  so  weak  that  there  was  danger  that  it  would  break ; 
and  that  the  defendant  neglected  to  repair  it.  All  this  may  be 
true,  and  still  the  defendant  may  be  guiltless  of  any  neglect  of 
duty  in  the  matter.  The  sufficiency  of  this  bank  and  of  all  the 
other  parts  of  the  canal  under  the  defendant's  charge,  the  ne- 
cessity of  repairs  in  all  cases  of  this  kind,  and  the  extent  of  the 
repairs  required  by  the  necessities  of  each  particular  case,  were 
all  matters  which  the  law  had  committed  to  his  discretion,  and 
the  question  as  to  his  duty  in  such  cases,  is  one  which,  from  its 
nature,  must  necessarily  be  determined  by  his  judgment.  For 
aught  that  appears,  he  had  examined  this  bank  and  upon  such 
examination  concluded  that  no  repairs  were  necessary.  The 
fact  that  a  breach  subsequently  occurred,  shows  that  he  waa 
mistaken  as  to  the  sufficiency  of  the  bank,  but  it  convicts  him 
of  no  neglect  of  duty.  The  allegation  that  the  defendant  neg- 
ligently and  carelessly  and  in  disregard  of  his  duty,  suffered 
the  bank  to  become  and  remain  weak  and  dangerous,  doee  not 
help  the  case.  It  does  not  change  the  fact  that  the  duty  to 
repair  this  bank  depended  upon  the  result  of  the  exercise  of 
the  defendant's  judgment.  He  may  have  judged  unwisely, 
c^en  carelessly,  but  for  the  purposes  of  a  civil  action,  his  judg- 
ment is  none  the  less  conclusive.  When  the  law  confides  a  dis- 
cretion to  its  officers  it  will  never  allow  their  acts,  done  in  good 
faith,  within  the  limits  of  that  discretion,  to  be  questioned. 
They  may  be  impeached  and  indicted  for  corruption,  and  pun- 
ished criminally,  but  it  is   denied  by  Justice   Beardsley,   that 


TOMPKINS— SEPTEMBER,  1855.  535 

Bigler  v.  The  New  York  Central  Ins.  Co. 

they  are  liable  to  a  civil  action  in  such  cases.  But  the  facts 
of  this  case  call  for  no  opinion  on  that  question.  I  think  the 
order  of  the  special  term  should  be  aflfirmed. 

Order  aflBrmed. 

[Niagara  General  Term,  September  3, 1855.     Bowen,  Mullett&ni.  Greene, 
Justices.] 


S.  and  J.  Bigler  vs.  The  New  York  Central  Insurance 

Company.  1  ao  ^ 

I8r.  S33 

22a  408 

A  policy  of  insurance  upon  a  "  steam  saw- mill"  covers  not  only  the  building  itself,         |  5.5a  353 

but  all  the  machinery  and  fixtures  therein,  necessary  to  make  it  a  steam  saw- 
mill in  all  its  parts. 

Under  a  condition  in  a  policy,  requiring  the  assured  to  give  notice  to  the  insurers 
of  any  subsequent  insurance  which  may  be  effected  upon  the  same  propeity, 
the  assured  is  bound  to  give  notice  of  a  policy  which  is  not  void  or  voidable 
upon  its  face,  but  is  merely  voidable  by  the  underwriters  upon  due  proof  of 
the  facts. 

If  the  assured  retains  the  second  policy  until  after  the  destruction  of  the  property 
insured,  and  then  brings  an  action  upon  it,  thereby  affirming  its  validity,  which 
action  is  settled  by  the  giving  and  accepting  the  notes  of  officers  of  the  insur- 
ance company,  which  the  insured  still  holds,  he  cannot  treat  the  second  insur- 
ance as  void  for  the  want  of  a  compliance  with  one  of  its  conditions,  but  is 
bound  to  give  notice  thereof;  although  the  second  policy  be  voidable  if  the 
insurers  see  fit  to  set  up  the  defense. 

MOTION  by  the  plaintiff  for  judgment  upon  a  verdict  in  his 
favor,  at  the  circuit,  subject  to  the  opinion  of  the  court, 
apon  a  case.     The  action  was  upon  a  policy  of  insurance. 

R.  Balcom,  for  the  plaintiff. 

Geo.  iS.  Tuckerman,  for  the  defendant. 

By  the  Court,  Mason,  J.  This  case  was  tried  before  me  at 
the  Broome  circuit  in  February  last,  and  after  hearing  all  the  evi- 
dence in  the  case  I  directed  a  verdict  for  the  plaintiff,  subject  to 


536  CASES  IN  TUE  SUPREME  COURT. 

Bi^ler  v.  The  New  York  Central  Ins.  Co. 

the  opinion  of  the  coui-t  on  a  case  to  be  made.  I  think  this  pol- 
icy is  broad  enough  to  cover  the  machinery  and  fixtures  in  the 
milh  The  insurance  was  for  $1000,  on  the  plaintiffs'  steam  saAv- 
milh  The  steam  saAv-mill  embraces  the  whole  thin;j — the  whole 
mil],  with  its  apparatus.  It  does  not  mean  merely  the  building 
itself,  but  includes  the  Avhole  machinery  necessary  to  make  it  a 
steam  saw-mill  in  all  its  parts.  (10  Barb.  440.  2  HalVs  S.  C. 
Rep.  490.  Angell  on  Ins.  §§  103, 104, 106.)  The  only  remain- 
ing question  in  the  case  is  whether  the  plaintiffs  forfeited  their 
insurance  by  procuring  the  subsequent  insurance  in  the  Globe 
Company.  The  contract  of  insurance  in  question  contains  the 
following  condition:  "And  if  the  said  insured  or  their  assigns 
shall  hereafter  make  any  other  insurance  on  the  same  property, 
and  shall  not  with  all  reasonable  diligence  give  notice  thereof  to 
the  secretary,  and  have  the  same  indorsed  on  this  instrument, 
or  otherwise  acknowledged  by  the  corporation,  in  writing,  this 
policy  shall  cease  and  be  of  no  further  effect."  There  can  be 
no  question,  upon  this  contract,  that  when  the  plaintiffs  obtained 
further  insurance  upon  this  mill  it  was  their  duty  to  give  notice 
thereof  to  the  defendants,  and  either  have  the  same  indorsed  on 
the  policy  or  otherwise  acknowledged  by  the  defendants  in  writ- 
ing. (5  Hill,  147.  14  Barh.  206.  16  Peters'  U.  S.  R.  495, 
512.)  IF  the  plaintiffs  neglected  to  comply  with  this  condition, 
the  policy  was  by  the  very  terms  of  the  contract  to  cease  and  be 
of  no  further  effect.  The  plaintiffs  entirely  failed  upon  the  trial 
to  show  compliance  with  this  condition  of  their  policy.  If  any 
notice  was  ever  sent  to  the  defendants,  which  it  seems  to  me  the 
evidence  fjiils  to  show,  it  was  nothing  more  than  a  notice  that 
the  plaintiffs  had  made  application  to  the  Globe  Company  for 
an  additional  insurance.  Whether  they  succeeded  in  procuring 
it  they  never  communicated  to  the  defendants.  This  certainly 
was  no  compliance  with  the  condition  of  the  plaintiffs'  contract, 
and  this  is  not  a  case  where  notice  to  Bishop  will  answer  the 
condition  of  the  policy.  The  plaintiffs  have  expressly  agreed 
that  in  case  they  shall  effect  any  other  insurance  on  this  prop 
erty,  and  shall  not  with  all  reasonable  diligence  give  notice 
thereof  to  the  defendants'  secretary,  and  have  the  same  indorsed 


TOMPKINS— SEPTEMBER,  1855.  637 

Bigler  v.  The  New  York  Central  Ins.  Co. 

&c.,  this  policy  shall  cease  and  be  of  no  further  effect.  This 
entitles  the  defendants  to  have  notice  given  to  their  secretary. 
It  is  a  part  of  the  contract,  and  cannot  be  dispensed  with  by 
this  court.  The  plaintiffs  claim  and  insist,  however,  that  4;he 
policy  issued  to  them  by  the  Globe  Company  was  a  void  policy, 
and  that  consequently  no  notice  of  the  same  was  required  to  be 
given  to  the  defendants.  It  was  shown  upon  the  trial  that  the 
Globe  Company  had  no  notice  of  the  existence  of  the  defendants' 
policy  until  after  the  property  was  destroyed  by  fire.  There 
was  a  clause  in  the  Globe  policy  "  that  in  case  the  assured  shall 
have  already  any  other  insurance  against  loss  by  fire,  on  the 
property-hereby  insured,  not  notified  to  the  company  and  men- 
tioned in  or  indorsed  upon  this  policy,  then  this  insurance  shall 
be  void,  and  of  no  effect."  This  clause  undoubtedly  relieved 
the  Globe  Company  from  liability  on  their  contract  of  insurance. 
No  action  could  be  maintained  upon  it  if  they  saw  fit  to  set  up 
the  defense.  The  Globe  policy  was  not  void  upon  its  face  ;  but 
as  soon  as  the  fact  was  alleged  and  proved  it  relieved  that  com- 
pany from  any  liability  upon  their  contract.  The  real  question, 
therefore,  presented  for  our  adjudication,  is  whether  this  policy 
in  the  Globe  Company  can  be  set  up  by  the  defendants  to  avoid 
their  contract  of  insurance  with  the  plaintiffs.  In  other  words, 
whether  an  insurance  that  shall  operate  to  avoid  the  defendants' 
policy  under  the  clause  to  which  we  have  adverted  must  not  be 
a  valid  policy — one  that  is  binding  on  the  insurers.  I  have  not 
been  able  to  find  any  adjudged  case  in  the  courts  of  this  state 
determining  this  question.  The  case  of  Carpenter  v.  .TAe 
Providence  and  Washing-ton  Ins.  Co.,  (16  Peters,  49, 508,  9,) 
determines  the  question  in  favor  of  the  defendants ;  and  if  that 
case  is  to  be  followed,  the  plaintiffs  are  not  entitled  to  judgment 
upon  their  verdict.  That  case  holds,  that  under  such  a  condi- 
tion in  a  contract  of  insurance,  notice  of  subsequent  void  or  void- 
able policies  must  be  given  to  the  underwriters,  unless  the  policy 
is  void  upon  its  face,  without  any  reference  whatever  to  extrinsic 
facts.  (16  Peters,  510.)  The  Globe  policy  was  not  either  void 
or  voidable  upon  its  face.  It  was  merely  voidable  by  the  under- 
writers, upon  due  proof  of  the  facts.     In   this  ver}'^  case  the 


538  CASES  IN  THE  SUPREME  COURT. 

Bigler  v.  The  New  York  Central  Ins.  Co. 

plaintiffs  held  on  to  that  policy  until  after  the  destruction  of 
the  property  insured,  and  then  brought  an  action  upon  the  pol- 
icy, against  the  Globe  Company,  thereby  affirming  the  validity 
of  the  policy,  and  which  suit  the  Globe  Company  settled  by  giv 
ing  the  promissoi-y  notes  of  certain  officers  of  the  company 
which  the  plaintiffs  still  hold.  The  plaintiffs  having  effected 
this  subsequent  insurance  in  the  Globe  Company  and  held  the 
policy  as  valid  in  their  hands,  claiming  all  the  benefits  of  an  in 
surance  contract  from  it.  they  were  bound  to  give  notice  thereof 
to  the  defendants  under  the  clause  in  their  contract  to  which  we 
have  adverted,  although  this  policy  was  voidable,  if  the  Globe 
Company  saw  fit  to  set  up  the  defense.  The  case  falls  within 
the  very  words  and  meaning  of  this  stipulation  in  the  defend- 
ants' policy.  I  will  not  enter  upon  a  discussion  of  the  reasons 
which  might  be  assigned  for  the  judgment  Avhich  we  have  pro- 
nounced. A  single  reason  is  sufficient  in  addition  to  those 
assigned  in  the  case  above  referred  to,  in  16  Peters.  One  reason 
why  the  defendants  require  notice  of  subsequent  insurances 
upon  the  same  property  to  be  given  to  them  is,  that  the  plain- 
tiffs may  not  insure  the  property  up  to  its  full  value  without 
their  knowledge,  and  thereby  have  much  less  motive  to  preserve 
it  from  destruction  by  fire  than  they  Avould  have  if  they  were 
their  own  insurers  for  a  portion  of  its  value.  The  fact  that  the 
plaintiffs  procured  this  insurance  in  the  Globe  Company  and 
paid  their  money  for  it,  and  held  it,  claiming  it  to  be  a  valid  in- 
surance, and  after  the  fire  brought  their  action,  upon  it,  shows 
they  regarded  it  as  a  good  insurance.  The  effect,  therefore, 
upon  the  defendants  in  this  respect  would  be  the  same  as  though 
it  were  a  valid  policy.  I  am  aware  that  the  cases  of  Jackson  et 
ah  V.  The  Massachusetts  Mutual  Fire  Ins.  Co.,  (23  Pick.  418.) 
and  of /S'/acy  V.  The  Franklin  Fire  Ins.  Co.,  (2  Watts  4'  Serg. 
544,)  hold  a  different  doctrine ;  but  those  cases,  so  far  as  they 
conflict  with  the  views  above  expressed,  are  not  to  be  followed. 
The  case  of  Sexton  v.  The  Montgomery  Co.  Mu.  Ins.  Co.,  (9 
Barh.  191,)  and  of  Wihon  v.  The  Genesee  Mu.  Ins.  Co.,  (16  id. 
511.)  which  hold  that  notice  given  to  the  agent  of  the  company 
authorized  to  make  surveys  and  receive  applications,  (fc3    is  a 


NEW  YORK— SEPTEMBER,  1855.  539 

Rogers  v.  Tilley. 

sufficient  compliance  with  such  a  clause  in  an  insurance  policy, 
are  not  applicable  to  the  case  under  consideration.  The  require- 
ment in  the  condition  of  the  policies  in  those  cases  was  general, 
that  notice  should  be  given  to  the  company.  The  case  under 
consideration  is  different.  The  defendants  have  guarded  their 
rights,  by  requiring  the  plaintiffs  to  have  it  a  part  of  their  con- 
tract that  this  notice  shall  be  given  to  the  secretary  of  the 
company.  The  plaintiffs  arc  not  entitled  to  judgment  upon  their 
verdict,  and  the  verdict  must  be  set  aside  and  a  new  trial  grant 
ed.  costs  to  abide  the  event  of  the  action. 

[Tompkins  General,  Term,   September  11,  1855.     Shankland,  Gray  and 
Mason,  Justices.] 


I  30    639 

Rogers  and  others  vs.  Tilley  and  others.  1 44a  21 

T  conveyed  his  property  to  R.  by  deed,  in  triist  to  receive  the  income  and  ap- 
ply it,  first,  to  the  payment  of  his  existing  debts,  and  secondly,  to  the  use  of 
his  wife  and  children  during  his  life;  and  on  his  death,  to  convey  the  fee  or 
(japital  to  his  children  then  in  being.  Held  that  although  the  absolute  power 
of  alienation  was  suspended,  both  by  the  nature  of  the  trust  and  by  the  con- 
tingent remainder  in  favor  of  unbojn  children,  yet  the  suspension  from  either 
cause  could  by  no  possibility  continue  longer  than  one  designated  life  in  being, 
and  was  therefore  not  contrary  to  the  statute. 

A  trust  to  receive  rents  and  profits,  and  apply  them  to  the  payment  of  debts,  may 
be  satisfied  by  a  sale  of  the  premises  for  a  term  of  years,  taking  the  whole  rent 
in  advance  and  discharging  the  debts ;  and  such  a  sale  is  not  contrary  to  the 
statute. 

An  application  of  rents  and  profits,  by  way  of  trust,  to  the  use  of  a  man's  family, 
is  an  application  of  them  to  his  use,  and  if  confined  to  the  period  of  his  life, 
and  to  a  living,  designated  individual,  is  not  contrary  to  the  statute. 

Even  if  this  were  not  so,  and  the  use  were  to  be  considered  as  exclusively  that 
of  the  wife  and  children,  as  it  is  only,  in  any  event,  for  their  lives,  and  cannot 
possibly  last  longer  than  the  life  of  the  father,  which  may  be  a  shorter  period, 
it  is  not  contrary  to  the  statute. 

If  any  of  the  trusts  in  a  deed  are  valid,  the  deed  is  not  void.  A  single  good 
trast  is  sufficient  to  sustain  it. 

A  trust  in  favor  of  tvf>  named  children  of  the  grantor  and  his  wife,  already  bom, 
"  and  such  as  may  be  born  of  the  lawful  issue  of"  the  grantor  and  his  wife, 
means  the  existing  children,  and  such,  if  any,  as  shall  be  afterwards  bom,  be- 
lug  lawful  issue  of  the  grantor  and  his  wife. 


640  CASES  IN  THE  SUPREME  COURT. 

Rogers  v.  Tilley. 

THIS  was  an  amicable  suit  to  vacate  or  correct  a  family  settlf^- 
ment,  alleged  to  have  been  drawn  up  by  mistake  in  a  fern-, 
not  truly  expressive  of  the  intent  of  the  parties,  and  to  be  void 
as  it  stands,  partly  for  uncertainty  and  partly  for  alleged  ille- 
gality in  the  trusts  created  by  it.  The  facts  in  the  case  suffi- 
ciently appear  in  the  opinion  of  the  court,  which  was  rendered  by, 

Roosevelt,  J,  By  the  terms  of  the  deeds  in  suit  in  this 
action,  Tilley  conveyed  his  property  to  Rogers,  in  trust,  to 
receive  the  income  and  apply  it,  first,  to  the  payment  of  his 
existing  debts,  and  secondly,  to  the  use  of  his  wife  and  chil- 
dren, during  his  life  ;  and  on  his  death,  to  convey  the  fee  or 
capital  to  his  children,  then  in  being.  Such  an  arrangement, 
it  is  obvious — and  it  is  the  first  question  in  the  case — suspends 
the  power  of  absolute  alienation.  The  trustee  cannot  sell,  be- 
cause the  trust  does  not  authorize  him  to  do  so.  The  bene- 
ficiaries, or  at  least  some  of  them,  cannot,  because  os  to  the 
rents  and  profits,  they  are  made  inalienable  bylaw,  and  because, 
as  to  the  capital,  the  children  living  at  their  father's  death,  to 
whom  it  is  then  to  belong,  may  be  totally  diff"erent  from  the 
two  now  born.  Hence  there  are  no  persons  in  being  by  whom, 
as  the  statute  expresses  it,  "  an  absolute  fee  in  possession  can 
be  conveyed."  But  all  suspensions  of  the  absolute  power  o( 
alienation  are  not  prohibited.  On  the  contrary,  if  restricted  to 
two  lives,  they  are  expressly  allowed ;  and  in  cases  of  minority, 
even  for  a  possible  period  of  twenty-one  years  more.  In  the 
present  instance,  the  ownership  becomes  absolute  on  Mr.  Tilley's 
death.  The  suspension  is  for  his  life,  and  his  life  only.  For,  al- 
though the  income  (subject  to  the  debts)  is  to  be  applied  "  to 
the  use  of  the  Avife  and  children,"  it  is  not  for  their  lives  abso- 
luteW,  but  '-for  a  shorter  period" — for  a  period  at  all  events, 
which  cannot  be  longer,  but  may  be  shorter,  than  the  lives  of  the 
persons  to  be  benefited.  The  application  of  the  income  is  to 
be  made  to  the  use  of  the  children  during  their  lives,  unless 
their  father  should  sooner  die.  On  his  death  the  trust  cer- 
tainly terminates,  also  the  contingent  character  of  the  future 
estate.     From  that  time,  the  rents  are  to  be  received   directly 


NEW  YORK— SEPTEMBER,  1855.  54 1 


Rogers  v.  Tillev. 


by  the  children  themselves,  then  in  being,  like  any  other  own- 
ers in  fee,  with  full  power  also  to  dispose  of  the  estate  itself, 
without  restriction  or  qualification. 

It  may  be  asked,  should  both  the  present  children  (no  others 
being  born)  die  before  their  father,  what  then  is  to  be  done  with 
the  income  ?  In  the  language  of  the  statute,  I  answer  that  "not 
being  embraced  in  the  trust,  and  not  being  otherwise  disposed  of, 
it  remains  in  or  reverts  to  the  person  creating  the  trust." 
It  would  be  sufficient,  however,  for  my  purpose  to  say  that,  sub- 
ject to  the  rules  of  suspension  as  above  stated,  the  law  ex- 
pressly authorizes  the  creation  of  a  trust  "to  receive  rents  and 
profits  and  apply  them  to  the  use  of  any  person  during  the 
life  of  such  person,  or  for  a  shorter  term."  And  I  might  add, 
if  necessary,  without  doing  any  violence  to  the  common  under- 
standing, that  an  application  of  income  during  a  person's  life, 
or  for  a  shorter  period,  to  the  use  of  such  person's  family,  is 
an  application  during  his  life,  or  for  a  shorter  period,  to  the  use 
of  such  person  himself;  and  that  an  authority,  therefore,  to 
create  a  trust  for  the  latter  purpose  necessarily  comprehends 
the  right  of  doing  so  for  the  former. 

Next  as  to  the  application  of  the  income  to  the  payment  of 
existing  debts  and  incumbrances.  The  statute  of  trusts  enu- 
merates certain  purposes  "  for  any  or  either"  of  which — that  is, 
for  any  one  or  more  of  which  in  the  same  instrument — trusts 
of  real  property  may  be  created.  Among  these  is,  first,  the 
payment  of  debts  generally,  and  secondly,  the  satisfying  of 
"any  charges,"  as  they  are  called,  on  the  particular  land. 
General  debts  are  to  be  paid  by  "  selling  the  land ;"  charges, 
by  selling,  mortgaging,  or  leasing  it.  The  reason  of  the  dis- 
tinction, if  any,  is  not  obvious.  Besides,  "  selling"  lands  for  a 
term  of  years,  as  in  the  case  of  tax  sales  in  this  city,  is  a  legally 
recognized  form  of  expression  used  in  the  statutes  of  the  state. 
It  is  a  natural  and  suitable  designation  of  a  lease,  where  the 
whole  rent,  under  the  name  of  purchase  money,  is  taken  in  ad- 
vance ;  so  that  selling,  when  for  a  limited  number  of  years, 
whether  short  or  long,  is  but  a  mode  of  leasing — and  leasing  in 
some  of  its  aspects,  is  but  a  mode  of  selling.     Hence  a  trust 

Vol.  XX.  81 


042  CASES  IN  THE  SUPREME  OC  CFRT. 

Rogers  v.  Tilley. 

to  receive  rents  and  profits,  and  apply  them  to  the  payment  of 
debts,  is  perfectly  lawful.  It  clearly  implies  a  trust  to  lease 
or  a  trust  to  sell  a  leasehold  interest — both  or  either — taking 
the  rent  all  down  in  advance,  or  receiving  it  from  time  to  time, 
in  periodical  installments.  The  latter  mode,  I  admit,  Avould.  in 
one  view,  be  void  as  against  creditors.  But  no  creditor  in  this 
case  complains,  and  no  provision  in  the  deed  requires  the  trus- 
tee, without  the  consent  of  creditors,  to  lease  in  that  mode. 
Besides,  what  prevents  the  trustee  from  making  a  lease  with 
the  usual  reservation  of  rent  and  then  selling  the  right  to  the 
rent  ?  A  lessor  may  sell  his  lease,  as  well  as  the  lessee.  In 
either  case  it  is  a  sale  of  land,  or,  more  properly  speaking,  of 
an  estate  in  land,  and  nothing  in  the  letter  of  the  statute  or  in 
its  polic}',  restricts  the  sale  to  a  sale  in  fee.  So  far  as  the 
debts  of  the  grantor  were  in  the  form  of  mortgages,  the  trust 
*o  lease  for  the  purpose  of  satisfying  them  Avas  clearly  lawful 
and  within  the  very  words  of  the  statute.  And  may  not  gen- 
eral debts  when  existing  and  acknowledged  in  a  trust  deed,  and 
provided  for  by  it,  without  any  great  stretch  of  language,  be 
called  "  charges"  on  the  trust  premises  ?  Had  the  grantor  con- 
fessed a  judgment  for  their  payment,  such  judgment  would 
clearly  have  been  a  charge ;  and  what  is  the  difference  in  prin- 
ciple between  a  confession  in  a  deed,  recorded  as  a  deed,  and  a 
confession  in  a  less  formal  certificate,  recorded  as  a  judgment  ? 
Besides,  as  against  a  mere  voluntary  conveyance,  all  the  exist- 
ing just  debts  of  the  grantor,  especially  since  the  code,  are 
quasi  charges  upon  the  land  conveyed  ;  so  much  so  that  the 
conveyance  as  far  as  it  obstructs  their  recovery  if  at  all,  is  to 
be  adjudged  of  no  effect.  This,  hoM-ever,  is  only  at  the  in- 
stance of  the  creditor,  if  any,  who  complains.  The  statute  of 
frauds  does  not  make  deeds  delaying  creditors  void  absolutely, 
but  void  only  as  against  the  creditors  delayed — a  case  which 
this  bill  does  not  present — indeed,  it  does  not  even  allege  the  ex- 
istence of  any  such  creditors.  On  the  contrary,  it  avers  tha* 
all  the  debts  have  been  paid,  and  all  the  incumbrances  satisfied, 
except  a  mortgage  of  $10,000— the  holder  of  which  can  either 
take  his  pay  by  installments  as  the  rents  are  received,  or  fore- 


NEW  YORK— SEPTEMBER,  1855.  543 

Rogers  v.  Tilley. 

close  and  get  the  whole  at  once.  The  trust  deed  neither  does 
nor  could  in  any  manner  interfere  with  his  rights.  And  even 
as  to  the  general  creditors  I  do  not  see  why  the  deeds,  if  assent- 
ed to  by  them,  are  not  to  that  extent  valid  trust  mortgages. 
(*S'ee  Leitch  v.  Hollister,  4  Cmnsi.  211.)  The  trust  in  favor  of 
the  two  named  children  of  Mr.  and  Mrs.  Tilley,  already  born, 
and  '•  such  as  may  be  born  of  the  lawful  issue  of  Mr.  and  Mrs. 
Tilley,"  although  badly  expressed,  means  the  existing  children, 
and  such,  if  any,  as  should  be  afterwards  born,  being  lawful 
issue  of  the  grantor  and  his  wife.  At  all  events,  there  is  no 
such  insurmountable  uncertainty  in  it  as  to  render  the  trust  on 
that  ground  void. 

The  result  then  is,  first,  that  although  the  absolute  power  of 
alienation  is  suspended  both  by  the  nature  of  the  trust  and  by 
the  contingent  remainder  in  favor  of  unborn  children,  yet  the 
suspension  from  either  cause,  can  by  no  possibility  continue 
longer  than  one  designated  life  in  being,  and  is  therefore  not 
contrary  to  the  statute.  Second,  that  a  trust  to  receive  rents 
and  profits  and  apply  them  to  the  payment  of  debts,  may  be 
satisfied  by  a  sale  of  the  premises  for  a  term  of  years,  tak- 
ing the  whole  rent  in  advance  and  discharging  the  debts,  and 
that  such  a  sale  is  not  contrary  to  the  statute.  Third,  that  an 
application  of  rents  and  proGts,  by  way  of  trust  to  the  use  of  a 
man's  family,  is  an  application  of  them  to  his  use,  and  if  con- 
fined to  the  period  of  his  life,  and  to  a  living  designated  indi- 
vidual, is  not  contrary  to  the  statute.  Fourth,  that  even  if  this 
were  not  so,  and  the  use  were  to  be  considered  as  exclusively 
that  of  the  wife  and  children,  as  it  was  only,  in  any  event,  for 
their  lives,  and  could  not  possibly  last  longer  than  the  life  of 
their  father,  which  might  be  a  shorter  period,  it  was  not  con- 
trary to  the  statute.  Fifth,  that  if  any  of  the  trusts  be  valid — 
and  some  of  them  certainly  cannot  be  disputed — the  deed  is 
not  void.  A  single  good  trust  is  sufficient  to  sustain  it.  A  de- 
cree should  be  entered  either  to  dismiss  the  bill  or  to  declare 
the  legal  effect  of  the  deeds,  as  above  stated. 

[New  York  Special  Term,  September.  22,  1855.     Roosevelt,  Justice.] 


30    644 

25h  586 


644  CASES  IN  THE  SUPREME  COURT. 


The  Ellicottville  and  Great  Valley  Plank  Roau 
Company  vs.  The  Buffalo  and  Pittsburgh  Rah  RoAn 
Company. 

Proof  that  a  plank  road  company  has,  in  accorrlance  with  the  statute,  been  tluly 
incorporated  and  organized,  and  has  built  its  road,  and  procured  the  same  to 
be  inspected,  and  has  erected  toll  gates  thereon,  and  is  in  the  actual  use,  oc- 
cupation and  enjoyment  of  the  road,  is  sufficient  to  enable  the  company  to 
maintain  an  action  of  trespass,  for  an  entry  upon  the  road,  against  any  persons 
who  do  not  show  a  better  right  to  the  possession  of  it  in  themselves. 

Since  the  act  of  1851,  in  relation  to  rail  road  companies,  such  companies  have  no 
right  to  enter  upon,  occupy  or  cross  a  turnpike  or  plank  road,  without  the 
consent  of  the  owners,  except  upon  the  condition  of  first  paying  the  damages 
sustained  by  the  turnpike  or  plank  road  company,  after  the  same  shall  have 
been  ascertained  under  the  statute. 

Although,  by  the  5th  subdivision  of  the  28th  section  of  the  general  rail  road  act, 
a  rail  road  company  is  empowered  to  construct  its  road  across,  along  or  upon 
any  stream  of  water,  water  course,  street,  highway,  i>lank  road,  turnpike  or 
canal,  which  the  route  of  its  road  shall  intersect  or  touch,  this  provision  is  to 
be  construed  as  granting  only  the  right  which  the  public  had  in  such  streams, 
plank  roads,  turnpikes,  &c.  and  not  as  attempting  to  grant  any  right  to  violate 
private  property  without  the  consent  of  the  owners. 

The  maxim  de  minimis  non  curat  lex  is  not  an  appropriate  answer  to  an  action 
for  violating  a  clear  legal  right. 

rpHIS  was  an  appeal  from  a  judgment  entered  in  favor  of  the 
X  defendants,  upon  the  report  of  a  referee.  The  action  -was 
brought  by  the  Plank  Road  Company,  to  restrain  the  Rail  Road 
Company  from  entering  upon  the  lands  and  premises  of  the 
plaintiffs  for  the  purpose  of  constructing  their  rail  road  at  the 
points  mentioned  in  the  complaint,  and  from  removing  the 
planks  and  grading  from  the  plaintiffs'  premises  ;  and  from  de- 
positing, within  the  premises  of  the  plaintiffs,  materials  for  the 
construction  of  the  rail  road  ;  and  from  running  locomotives  and 
cars  upon  and  over  the  plaintiffs'  plank  road,  at  the  places  and 
points  mentioned  ;  and  to  recover  damages  for  injuries  already 
done. 

The  defendants,  by  their  answer,  denied  all  the  facts  stated  in 
the  complaint.  And  for  a  further  answer  to  the  complaint, 
stated,  2d.  That  the  places  and  routes  claimed  by  the  plaintiffs 
for  their  plank  road  are  a  public  highway,  and  were  so  at  the 


ERIE— NOYEMBER,  1855.  645 


Ellicottville  &c.  Plank  Road  Co.  v.  Buffalo  &c.  Rail  Road  Co. 

time  the  defendants  were  said  to  have  entered  on  the  same  ;  and 
that  the  defendants'  rail  road  necessarily  runs  along  the  line  of 
the  highway,  and  that  the  defendants  had  carried  the  highwaj 
over  the  track  of  their  rail  road,  at  the  points  mentioned,  and  had 
restored  the  highway  to  its  former  state,  and  had  not  unnecessa- 
rily impaired  its  usefulness.  3d.  That  the  track  of  their  rail 
road  necessarily  crosses  and  runs  along  and  upon  the  plank  road  ; 
that  at  the  points  mentioned  in  the  complaint  the  defendants  had 
carried  the  plank  road  over  the  rail  road,  and  had  restored 
the  plank  road  to  its  former  state,  so  as  not  in  any  manner  to 
have  impaired  its  usefulness,  but  had  left  the  same  in  as  good 
condition  as  it  formerly  was  before  the  track  of  the  rail  road 
was  constructed.  The  action  was  referred  to  a  sole  referee,  for 
trial  and  determination.  The  referee,  after  the  hearing  before 
him,  reported  in  substance  the  following  facts.  That  in  the  year 
1850,  the  plaintiffs  duly  filed  articles  of  association,  in  the  office 
of  the  secretary  of  state,  and  procured  themselves  to  be  duly 
incorporated,  organized  and  formed  into  a  company  for  the  pur- 
pose of  building  a  plank  road,  from  the  village  of  Ellicottville 
through  the  town  of  Great  Valley,  to  Great  A^alley  station  on 
the  New  York  and  Erie  Rail  Road,  in  the  county  of  Cattarau- 
gus. That  in  pursuance  of  such  organization,  the  said  company 
went  on  and  built  and  completed  their  said  plank  road,  in  the 
year  1851.  •  That  the  road  Avas  located  by  the  company  and 
built  along  and  upon  the  highway,  through  the  town  of  Great 
Valley,  at  the  points  where  the  trespasses  mentioned  in  the 
complaint  in  this  action  were  alleged  to  have  been  committed ; 
and  that,  prior  to  the  building  of  the  plank  road,  the  same  had 
been  used  as  a  public  highway  for  the  period  of  twenty-one  years 
and  upwards.  That  James  Nelson,  at  and  prior  to  the  forma- 
tion of  the  plank  road  company  and  the  making  of  the  road,  was 
the  owner  and  occupant  of  the  land,  on  both  sides  of  the  high- 
way. That  previous  to  the  building  of  the  plank  road,  the  com- 
pany did  not  procure  the  consent  of  the  commissioners  of  high- 
Avays  of  the  town  of  Great  Valley,  nor  of  two-thirds  of  the 
inhabitants  residing  on  the  line  of  the  road,  nor  had  they,  at  any 
time  since,  done  so.     That  prior  to  the  time  of  the  alleged  tres- 


646  (JASES  IN  THE  SUPPwEME  COURT. 

Ellicottville  &c.  Plank  Road  Co.  v.  Buffalo  &c.  Rail  Road  Cc 

passes,  and  after  they  had  built  their  road,  the  plank  road  com- 
pany had.  in  accordance  with  the  statute,  procured  the  road  tc 
be  inspected,  and  had  erected  toll  gates  thereon,  and  were  in 
the  actual  use,  occupation  and  enjoyment  of  the  same. 

The  referee  further  found  and  reported,  that  the  defendants 
were  duly  organized  as  a  rail  road  company,  on  the  7th  day  of 
Octolier,  1852,  for  the  purpose  of  building  a  rail  road  from  the 
city  of  Buifalo  to  the  New  York  and  Erie  Rail  Road  in  the 
county  of  Cattaraugus ;  and  that  it  became  and  was  necessary 
for  them  to  build  on  and  across  the  said  plank  road  in  the  said 
town  of  Great  Valley,  at  the  points  Avhere  the  said  plank  road 
Avas  constructed,  and  upon  the  highway  through  the  lands  occu- 
pied by  the  said  Tames  Nelson  ;  and  that  the  defendants  did, 
without  the  consent  of  the  plank  road  company,  enter  upon  the 
same  at  the  places  aforesaid,  tear  up  the  planks,  and  grade  the 
land  for  the  purpose  of  laying  down  a  track  thereon,  which  was 
the  same  trespass  and  injury  mentioned  in  the  complaint  in  this 
action  ;  and  that  the  injury  done  to  the  road  of  the  plaintiffs  by 
tearing  up  the  plank  road  was  only  nominal,  and  no  more  than 
was  necessary  to  enable  the  defendants  to  grade  their  road  for 
the  purposes  aforesaid. 

From  the  foregoing  facts  the  referee  found  and  reported  the 
following  conclusions  of  law  :  That  at  the  time  of  the  commence- 
ment of  this  action,  the  plaintiffs  had  not  any  title  to  or  right  in 
the  land  or  premises  where  the  alleged  trespasses  were  commit- 
ted, and  that  the  plaintiff  could  not  recover :  and  that  a  judg- 
ment must  be  entered  for  the  defendants,  that  they  recover  their 
costs  against  the  plaintiffs  in  this  action. 

Upon  this  report  a  judgment  was  entered,  that  the  plaintiffs 
take  nothing  by  their  said  complaint,  and  that  the  same  be  dis- 
missed ;  and  that  the  defendants  do  go  thereof  without  day. 
And  it  was  further  adjudged,  that  the  defendants  should  recover 
of  the  plaintiffs  the  sum  of  $63.34,  adjudged  to  the  defendants 
for  the  costs  and  expenses  of  this  action,  and  that  they  have  ex- 
ecution therefor. 


ERIE— NOVEMBER,  1855.  547 


Ellicottville  &c.  Plank  Road  Co.  v.  Buffalo  &c.  Rail  Road  Ca 
The  appeal  was  argued  in  this  court  by 

Harrington  4*  Larnh,  for  the  appellants. 
A.  G.  Rice,  for  the  respondents. 

By  the  Court,  Mullett,  J.  This  was  an  action  brought 
by  the  plank  road  company  to  recover  damages  from  the  rail 
road  corppany,  for  a  trespass  committed  by  them,  by  entering 
upon  the  plank  road,  tearing  up  the  plank  and  grading  and  de^ 
positing  materials  for  the  rail  ^road  within  the  bounds  of  the 
plank  road  ;  and  for  an  injunction  against  the  rail  road  compa- 
ny to  restrain  them  from  proceeding  with  the  construction  of 
their  rail  road  on  and  across  the  plank  road,  until  they  had  pro- 
cured the  damages  to  be  assessed  and  paid.  Upon  the  trial,  it 
was  proved,  and  the  referee  found  and  reported,  that  the  plank 
road  company  was  duly  incorporated  and  organized  in  1850,  and 
that  they  went  on  and  built  their  road  in  1851.  That  prior  to 
the  alleged  trespasses  by  the  defendants,  the  plank  road  company 
had,  in  accordance  with  the  statute,  procured  their  road  to  be 
inspected  and  had  erected  toll  gates  thereon,  and  were  in  the  act- 
ual use,  occupation  and  enjoyment  of  the  same.  This  was  abund- 
antly'' suflBcient  to  enable  the  plaintiffs  to  maintain  an  action  0/.' 
trespass  for  an  entry  on  their  plank  road,  against  any  persons 
who  did  not  show  a  better  right  to  the  possession  of  it  in  them- 
selves. 

The  referee,  therefore,  erred  in  deciding,  that,  at  the  time  of  the 
commencement  of  this  action,  the  plaintiffs  had  not  any  title  to, 
or  right  in  the  land  and  premises,  where  the  alleged  trespasses 
were  <  ommitted,  and  that  the  plaintiffs  could  not  recover  therein, 
on  that  account.  But  it  appeared  on  the  trial  before  the  referee, 
and  also  on  the  argument  of  the  appeal  before  us,  that  the  de- 
fendiints  claimed,  that,  as  a  rail  road  corporation,  they  had  a 
right  to  enter  upon  the  plaintiffs'  plank  road,  and  construct 
their  rail  road  upon  and  across  it,  without,  or  before,  causing 
the  dai'iages  sustained,  or  to  be  sustained  by  the  plank  road 
tompany,  to  be  assessed  or  paid  ;  which  is  denied  by  the  plain- 


048  CASES  IN  THE  SUPREME  COURT. 

EUicottville  &c.  Plank  Road  Co.  v.  Buffalo  &c.  Rail  Road  Co. 

tiffs,  and  this  presents  the  most  important  question  between 
the  parties. 

The  defendants,  as  a  rail  road  company  were  incorporated 
and  organized  under  the  act  to  authorize  the  formation  of  rail 
road  corporations,  and  to  regulate  the  same,  passed  April  2d, 
1850,  commonly  called  the  general  rail  road  act.  [Laws  of 
1850,  p.  211.)  By  the  fifth  subdivision  of  the  28th  section  of 
which  act,  it  is  provided,  that  every  corporation  formed  under  that 
act,  in  addition  to  certain  other  specified  powers,  shall  have  power 
to  construct  their  road  across,  along  and  upon  any  stream  of 
Avater,  water-course,  street,  highway,  plank  road,  turnpike  or 
canal,  which  the  route  of  its  road  shall  intersect  or  touch;  but 
that  the  company  shall  restore  the  stream  or  water-course, 
street,  highway,  plank  road  or  turnpike  thus  intersected  or 
touched,  to  its  former  state,  or  to  such  state  as  not  unnecessarily 
to  have  impaired  its  usefulness.  This  provision  of  the  statute 
was  copied  from  the  5th  subdivision  of  the  19th  section  of  the 
act  of  1848,  on  the  same  subject ;  and  that,  so  far  as  it  relates 
to  crossing  streams  of  water,  Avater-courses,  roads  and  highways, 
was  taken  from  the  11th  section  of  the  act  to  provide  for  the  con- 
struction of  a  rail  road  from  Auburn  to  Rochester.  [Sess.  Laics 
of  1836,  p.  493.)  This  statute  has  not  been  and  cannot  be  so  con- 
strued as  to  authorize  a  rail  road  corporation  to  enter  upon  and 
permanently  occupy  or  seriously  to  injure  a  turnpike  or  plank 
road  company  Avho  hold  and  enjoy  their  franchises  and  property 
under  an  authority  of  the  legislature,  equally  valid  and  sacred 
as  that  wliich  confers  similar  rights  and  privileges  on  rail  road 
companies.  On  the  contrary,  this  section  is  a  clear  manifesta- 
tion of  a  legislative  intention  to  protect  the  rights  of  turnpike 
and  plank  road  corporations  against  intrusion  and  violence,  by 
rail  road  companies.  Rail  road  companies  are  authorized  to 
intersect  or  touch  them  only  on  condition  that  they  shall  not 
unnecessarily  impair  their  usefulness,  to  the  owners.  The  m 
violability  of  private  property,  whether  belonging  to  individuals 
or  private  corporations,  against  the  intrusion  of  rail  road  corpora- 
tions, is  strongly  asserted  and  clearly  illustrated  by  the  su- 
preme court  in  the  cases  of  Fletcher  v.  The  Auburn  and  Si/ra- 


ERIE— NOVEMBEE,  1855.  549 


Ellicc  Itville  &c.  Plank  Road  Co.  v.  Buffalo  &c.  Rail  Road  Co. 

euse  Rail  Road  Co.,  (25  Wettd.  462  ;)  T/ie  Tnistees  of  the 
Preshytcrian  Society  in  Waterloo  v.  The  Auburn  and  Roch- 
ester Rail  Road  Company,  (.3  Hill,  567,)  and  the  case  of  The 
Seneca  Road,  Co.  v.  The  Auburn  and  Rochester  Rail  Road 
Co.  (5  Hill,  170.)  The  legislature  could  not  give,  and  it  is  not 
to  be  presumed  that  they  intended  or  attempted  to  give,  to  this 
rail  road  company  a  right  to  enter  upon  the  plaintiffs'  road  and 
in  any  way  to  impair  its  usefulness  or  diminish  its  value,  with- 
out making  or  becoming  liable  to  make  the  plank  road  company 
just  compensation. 

The  obstacle  heretofore  considered  as  existing  in  the  wa}^  of 
a  rail  road  company  acquiring  a  right  to  run  their  rail  road 
across  a  turnpike  or  plank  road,  consisted  in  the  want  of  power 
to  acquire  the  privilege  desired,  except  by  agreement.  The 
statute  authorizing  a  rail  road  company  to  acquire  the  title  to 
real  estate  wanted  for  the  road,  by  the  special  proceedings 
pointed  out  by  the  statute,  was  not  considered  applicable  to 
cases  where  the  title  to  the  real  estate  was  not  to  be  taken,  but 
only  a  partial  privilege  of  using  it,  which  did  not  divest  the 
owners  of  their  title,  but  only  occasioned  them  some  damage, 
which  the  rail  road  company  had  no  power  to  compel  them  to 
surrender.  This  construction  of  the  statute  was  in  harmony 
with  the  legal  doctrine  of  the  inviolability  of  private  rights,  but 
Avas  not  in  accordance  with  the  enterprise  and  improvements 
of  the  age.  That  a  turnpike  or  plank  road,  though  owned  by 
individuals  and  used  as  private  property,  might  be  extended 
through  an  important  section  of  the  state,  and  through  its 
whole  length  intercept  and  cut  off  the  far  more  important  transits 
of  rail  roads,  or  be  the  occasion  for  demanding  an  exorbitant 
price  for  crossing  them,  is  a  consequence  probably  not  foreseen 
at  the  time  of  the  incorporation  of  these  turnpike  and  plank 
road  companies.  It  is  true,  that  by  the  5th  subdivision  of  the 
28th  section  of  the  general  rail  road  act,  a  rail  road  company 
is  empowered  to  construct  its  road  across,  along  or  upon  any 
stream  of  water,  water-course,  street,  highway,  plank  road, 
turnpike  or  canal,  which  the  route  of  its  road  shall  intersect  or 
touch  ;  but  this  statute  is  construed  as  granting  only  the  right 

Vol.  XX.  82 


650        CASES  m  THE  SUPREME  COURT. 

Ellicottville  &c.  Plank  Road  Co.  v.  Buffalo  «fcc.  Rail  Road  Co. 

which  the  puhllc  had  in  these  streams  of  water,  water-couises, 
streets,  highways,  plank  roads,  turnpikes  and  canals,  and  not  as 
attempting  to  grant  any  right  to  violate  private  property  without 
the  consent  of  the  owners  ;  and  this  construction  is  sustained 
by  the  doctrine  of  noscHiir  a  sociis.  {BiirrilVs  Lam  Diet, 
imrt  2,  p.  756.  3  Term  Rep.  87.  1  B.  Sr  C.  644.  13  East, 
531.  Broom^s  Legal  Maxims,  294.)  The  same  reluctance  in 
tlie  legislature  to  violate  individual  property,  or  take  it,  or 
authorize  another  to  take  it,  without  the  consent  of  the  owner, 
or  making  compensation  to  him  for  it,  is  manifest  in  the  24th 
section  of  the  general  rail  road  act  of  1850.  The  legislature 
provided  for  what  might,  in  many  cases,  be  considered  an  ad- 
equate compensation  for  crossing  a  turnpike  or  plank  road,  but 
they  have  not  said  so,  nor  compelled  the  owners  to  take  it  as 
such.  By  the  18th  section  of  the  general  rail  road  act,  it  is 
declared  that  all  real  estate  acquired  by  any  company  under 
and  pursuant  to  the  provisions  of  that  act,  for  the  purposes 
of  its  incorporation,  shall  be  deemed  to  be  acquired  for  public 
use.  This  is,  in  substance,  but  a  legislative  recognition  of  tho 
doctrine  laid  down  by  the  chancellor  in  the  case  of  Beeknian  v 
The  Saratoga  and  Schenectady  Rail  Road  Co.,  (3  Paige,  45,' 
and  practiced  upon  ever  since.  This  is  the  principle  upon 
which  rail  road  companies  are  authorized  to  take  private  prop- 
erty for  the  use  of  their  rail  roads,  upon  paying  a  compensation 
ascertained  in  the  manner  provided  by  the  statute  :  but  it  can- 
not authorize  them  to  trespass  upon  the  lands  of  others  which 
they  do  not  take,  and  for  which  they  pay  no  compensation, 
Avhich  it  must  do  if  it  authorizes  them  to  enter  upon  the  land 
and  appropriate  it  before  ascertaining  and  paying  the  compen- 
sation. By  the  4th  section  of  the  act  of  1851,  in  relation  to 
rail  road  companies,  a  rail  road  company  which  shall  occupy  or 
cross  a  turnpike  or  plank  road,  is  made  liable  to  pay  such  turn- 
pike or  plank  road  company  all  damages  which  it  may  sustain 
by  reason  of  such  occupancy  or  crossing ;  the  damages  to  be 
ascertained  and  paid  in  the  same  manner  as  is  provided  by  laAV 
for  the  assessment  and  payment  of  damages  in  cases  of  taking 
private  property  for  the  use  of  rail  road  companies.     {Sess. 


ERIE— NOVEMBER,  1855.  65] 


EUicottviUc  &c.  Plank  Road  Co.  v.  Buffalo  &c.  Rail  Road  Co. 

Laws  of  1851,  p.  21.)  The  law  to  authorize  the  formation  of 
rail  road  companies,  and  to  regulate  the  same,  passed  iu  1850, 
after  pointing  out  the  manner  hi  which  a  rail  road  company 
shall  proceed  to  ascertain  the  damages  to  be  paid  for  the  real 
estate  to  be  taken  for  its  use,  declares  that  a  certified  copy  of 
the  order  to  be  made  on  that  occasion,  shall  be  recorded  at 
length  in  the  clerk's  oflSce  of  the  county  in  which  it  is  situated  ; 
and  that,  thereupon,  and  on  the  payment  or  deposit,  by  the 
company,  of  the  sums  to  be  paid  for  the  land  <fec.  the  company 
shall  be  entitled  to  enter  upon,  take  possession  of,  and  use  the 
said  land  for  the  purposes  of  its  incorporation.  (^Sec.  18.) 
Whatever  may  have  been  the  claim  of  rail  road  companies,  be- 
fore this  statute,  to  a  right  to  enter  upon,  occupy  or  cross  a 
plank  road  without  being  liable  for  the  damages  occasioned  by 
them,  since  the  act  of  1851  they  have  no  such  right,  but  can 
occupy  or  cross  a  turnpike  or  plank  road,  without  the  consent 
of  the  owners,  only  upon  the  condition  of  first  paying  the  dam 
ages  sustained  by  such  turnpike  or  plank  road  company,  ascer- 
tained under  the  statute.  This  construction  of  the  4th  section 
of  the  act  of  1851,  is  in  harmony  with  the  spirit  of  our  consti- 
tution ;  with  the  principles  so  uniformly  asserted  and  maintain- 
ed by  our  judiciary  ;  with  the  sentiments  which  have  generally 
governed  our  legislature ;  with  the  just  and  magnanimous 
policy  which  dictated  the  law,  and  with  the  language  of  the 
statute  to  which  it  was  assimilated. 

The  referee  also  erred  in  finding  and  reporting  that  the  in- 
jury done  to  the  road  of  the  plaintiffs  by  tearing  up  the 
planks,  was  only  nominal.  He  might  have  found  the  damages 
as  small  as  the  truth  or  facts  would  justify,  but  the  maxim  de 
minimis  non  curat  lex  is  not  an  applicable  answer  to  an  action 
for  violating  a  clear  legal  right. 

The  judgment  appealed  from  must  be  reversed ;  'the  report 
of  the  referee  set  aside,  and  a  new  reference  to  the  same  or 
some  other  referee,  ordered. 

Judgment  reversed. 

[Erie  General  Term,  November  14,  1855.  Bowen,  Muilctt  and  Greene 
Justices.] 


652  CASES  IN  THE  SUPREME  COURT. 


~- — ^       The  People,  ex  rel.  Ezra  B.  Booth,  respondent,  vs.  Johts 

Fisher,  appellant. 

• 

The  5th  section  of  the  "act  for  the  prevention  of  intemperance,  pauperism  and 
crime,"  passed  April  9th,  1855,  does  not,  either  in  terms  or  by  just  or  fair  im- 
plication, restrict  the  power  of  courts  of  special  sessions,  in  res[)ect  to  offenses 
under  that  act,  to  cases  where  the  party  charged  either  requests  to  be  tried 
by  such  c(Airt  ou  omits  to  give  bail.  On  the  contrary,  it  seems  to  contemplate 
that  the  justice  or  other  officer  before  whom  the  accused  shall  be  brought  by 
virtue  of  the  process,  shall  proceed  at  once  to  the  trial  of  the  charge. 

Not  only  is  the  power  conferred  upon  the  magistrate  to  try  the  accused,  bt.: 
he  is  imperatively  required  to  hold  a  court  of  special  sessions,  and  proceed  to 
the  trial  as  soon  as  the  complainant  can  be  notified.  Neither  his  power,  or  his 
duty  to  try,  are  made  to  depend  upon  the  defendant's  request  to  be  tried,  his 
omission  to  give  bail,  or  any  other  condition. 

Ihe  magistrate  may  therefore  proceed  to  the  trial  of  the  accused,  notwithstanding 
the  latter  offers  to  give  bail  for  his  appearance  at  the  next  criminal  court  having 
cognizance  of  the  offense. 

Section  2  of  article  1  of  the  constitution,  which  declares  that  "  The  trial  by 
jury,  in  all  cases  in  which  it  has  been  heretofore  used,  shall  remain  inviolate 
forever,"  was  not  intended  to  apply  to  such  a  case. 

The  expression  "  the  trial  by  jury,"  as  used  in  that  section,  refers  as  well  to  all 
other  incidents  of  the  trial  as  to  the  number  of  men  necessaiy  to  constitute 
the  jury ;  and  means  such  a  trial  as  is  contemplated  by  section  6  of  article  1 
of  the  constitution,  for  persons  charged  with  ca})ital  or  otherwise  infamous  of- 
fenses; wliich  must  be  upon  presentment  or  indictment  of  a  grand  jury, 
and  in  a  court  of  record  with  common  law  jurisdiction. 

All  offenses  which  are  not  capital  or  otherwise  infamous  crimes,  are  left  under 
the  regulation  of  the  legislature,  in  regard  to  trial  by  jury. 

CERTIORARI  to  the  county  judge  of  Monroe  county.  On 
the  9th  day  of  August,  1855,  the  appellant  was  brought  be- 
fore S.  W.  D.  Moore,  Esq.  police  justice  of  the  city  of  Roches- 
ter, upon  a  warrant  issued  by  said  justice,  charged  with  a 
violation  of  the  act  entitled  "  An  act  for  the  prevention  of  in- 
temperance, pauperism  and  crime,"  passed  April  9th,  1855.  On 
being  brought  before  the  justice,  he  offered  to  give  bail  for  his 
appearance  at  the  next  criminal  court  having  cognizance  of  the 
offense.  The  justice  was  satisfied  with  the  responsibility  of  the 
bail  so  offered,  but  refused  to  receive  it,  or  to  take  any  bail. 
Thereupon,  on  the  11th  day  of  August,  1855,  the  appellant  pre- 
sented his  petition  to  H.  Humphrey,  Esq.   county  judge,  (fee. ; 


MONROE— DECEMBER,  1855.  55^ 

The  People  v.  Fisher. 

and  obtained  tlie  allowance  of  a  writ  of  habeas  corpus,  in  order 
to  be  let  to  bail  and  be  discharged  from  custod3%  On  the  same 
day  the  officer  made  return  to  said  writ,  and  the  same  was 
traversed  by  the  affidavit  of  the  appellant,  and  issue  was  joined 
thereon.  On  this  issue  evidence  was  taken  to  contradict  the 
return.  After  hearing  the  case,  and  arguments  of  counsel,  the 
county  judge  decided  not  to  let  the  defendant  to  bail,  and  ordered 
him  to  be  remanded  into  the  custody  of  the  police  constable,  to 
be  tried  before  a  court  of  special  sessions.  On  the  17th  day  of 
August,  1855,  the  defendant  sued  out  a  writ  of  certiorari,  re- 
moving the  proceedings  and  adjudication  of  the  county  judge 
into  this  court  to  be  reviewed. 

Henry  Hunter,  for  the  defendant. 

/.  B.  Siebbitis,  for  the  people. 

By  the  Court,  Welles,  J.  The  fifth  section  of  the  act  en- 
titled "  An  act  for  the  prevention  of  intemperance,  pauperism 
and  crime,"  passed  April  9th,  1855,  is  in  the  following  words  : 

"  §  5.  Every  justice  of  the  peace,  police  justice,  county  judge, 
city  judge,  and  in  addition,  in  the  city  of  New  York,  the  re- 
corder, each  justice  of  the  marine  court,  and  the  justices  of  the 
district  courts,  and  in  all  cities  where  there  is  a  recorder's  court, 
the  recorder,  shall  have  power  to  issue  process,  to  hear  and  de- 
termine charges,  and  punish  for  all  offenses  arising  under  any 
of  the  provisions  of  this  act ;  and  they  are  each  hereby  author- 
ized and  required  to  hold  courts  of  special  sessions  for  the  trial 
of  such  offenses,  and  under  this  act,  to  do  all  other  acts  and  ex- 
ercise the  same  authority  that  may  be  done  or  exercised  by 
justices  of  the  peace  in  criminal  cases,  and  by  courts  of  special 
sessions  as  the  same  are  now  constituted ;  and  the  term  magis- 
trate, as  used  in  this  act,  shall  be  deemed  to  refer  to  and  include 
each  officer  named  in  this  section.  Such  court  of  special  ses- 
sions shall  not  be  required  to  take  the  examination  of  any  person 
brought  before  it  upon  charge  of  an  offense  under  this  act,  but 
shall  proceed  to  trial  as  soon  thereafter  as  the  complainant  can 
% 


654        CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Fisher. 

be  notified ;  and  for  good  cause  shown  he  may  adjourn  from  time 
to  time,  not  exceeding  twenty  days.  At  the  time  of  joining 
issue  and  not  after,  either  party  may  demand  a  trial  by  jury,  in 
which  case  the  magistrate  shall  issue  a  venire  and  cause  a  jury 
to  be  summoned  and  empanneled,  as  in  other  criminal  cases  in 
courts  of  special  sessions.  The  complainant  may  appeal  upon 
such  trial  upon  behalf  of  the  people,  and  prosecute  the  same 
with  or  without  counsel.  He  may  also  prosecute  the  same  in  all 
the  courts  to  Avhich,  as  hereinafter  provided,  appeal  may  be  ta- 
ken by  attorney,  or  he  may  apply  to  the  district  attorney,  whoso 
duty  it  shall  be  upon  such  application  to  appear  and  conduct 
said  appeal  from  the  judgment  thereon.  The  same  costs  and 
disbursements  shall  be  allowed  against  the  defendant  upon 
such  appeal  as  are  now  allowed  in  civil  actions,  in  those  courts 
to  which  appeal  may  be  taken  according  to  the  provisions  of  this 
act.  In  all  cases,  if  the  district  attorney  shall  appear  and  con- 
duct the  trial  or  appeal,  or  both,  the  costs,  if  any,  shall  go  to 
him  for  his  individual  use ;  in  other  cases  to  the  complainant ; 
and  in  default  of  the  payment  of  the  whole  or  any  part  thereof, 
the  defendant  may  be  committed  to  the  same  extent  as  provided 
in  the  fourth  section  of  this  act." 

By  this  section  the  several  oflBcers  therein  enumerated  are  in- 
vested with  the  same  powers  in  relation  to  offenses  under  the 
act  of  which  it  constitutes  a  part,  with  which  justices  of  the 
peace  are  clothed  in  criminal  cases,  and  are  each  required  to 
hold  courts  of  special  sessions  with  the  same  powers  in  reference 
to  such  offenses  as  courts  of  special  sessions  possessed,  as  they 
were  constituted  when  the  act  was  passed,  in  reference  to  cases 
within  their  jurisdiction. 

By  the  revised  statutes  the  powers  of  courts  of  special  sessions 
are  confined  to  cases  where  the  party  charged  with  an  offense 
requests  to  be  tried  before  them,  or,  where  he  shall  not  so  rt^ 
quest,  but  shall  after  being  required,  omit  for  twenty-four  hours 
to  give  bail  for  his  appearance  at  the  next  criminal  court  having 
jurisdiction,  (fee.  (2  R.  S.  711,  §j  5,  23.)  But  the  section  of 
the  prohibitory  act  referred  to,  does  not.  as  the  revised  statutes 
do,  restrict  the  power  of  the  courts  of  special  sessions  to  cases 


MONROE— DECEMBER,  1855.  655 

The  People  v.  Fisher. 

where  the  party  charged  either  requests  to  be  tried  by  such 
court  or  omits  to  give  bail.  It  certainl}'^  does  not  do  so  in  terras, 
nor,  as  I  think,  by  just  or  fair  implication ;  but  on  the  contra- 
ry it  seems  to  contemplate  that  the  justice  or  other  officer  be- 
fore whom  the  person  charged  shall  be  brought  by  virtue  of  the 
process,  shall  proceed  at  once  to  the  trial  of  the  charge.  Power 
is  expressly  conferred  upon  the  officers  mentioned  to  issue  pro- 
cess, to  hear  and  determine  charges  and  punish  all  offenses 
against  the  provisions  of  the  act ;  and  for  that  purpose  they  are 
each  authorized  and  required  to  hold  courts  of  special  sessions 
for  the  trial  of  such  offense.  Such  court  is  not  required  to  take 
the  examination  of  any  person  brought  before  it  upon  charge  of 
an  offense,  "  and  shall  pi'oceed  to  trial  as  soon  thereafter  as  the 
complainant  can  be  notified.''^  The  section  then  proceeds  to 
give  directions  respecting  adjournments,  and  provides  for  a 
jury  on  the  demand  of  either  party,  if  applied  for  at  the  joining 
of  issue.  It  then  concludes  with  some  regulations  and  provis- 
ions respecting  appeals  from  judgments  of  the  courts  of  special 
sessions  provided  for  in  the  8th  section  of  the  act,  and  the  costs 
on  such  appeals. 

It  will  be  perceived  not  only  that  the  magistrate  has  confer- 
red upon  him  the  power  to  try  the  persons  charged,  but  that  he 
is  imperatively  required  to  hold  a  court  of  special  sessions,  and 
proceed  to  the  trial  as  soon  as  the  complainant  can  be  notified. 
Neither  his  power  or  duty  to  try  is  made  to  depecid  upon  the 
defendant's  request  to  be  tried,  his  omission  to  give  bail  or  any 
other  condition.  That  the  power  of  courts  of  special  sessions, 
in  the  cases  provided  for  in  the  revised  statutes,  is  thus  limited 
and  dependent,  and  in  the  act  under  consideration,  acts  which, 
before  its  passage,  were  innocent  to  the  eye  of  the  law,  are  made 
misdemeanors,  their  punishment  defined,  these  tribunals  erected 
and  provided  expressly  for  their  trial  and  punishment,  with  di- 
rections concerning  their  manner  of  proceeding,  and  no  mention 
made  of  any  such  condition  or  restriction  of  their  powers,  is 
strong  evidence  to  my  mind  that  none  such  were  intended  to  be 
imposed.  Instead  of  the  conditions  provided  in  the  revised 
statutes,  these  courts,  in  cases  arising  under  this  act,  are  direct- 


656  CASES  IN"  THE  SUPREME  COURT. 

The  People  v.  Fisher. 

ed  to  proceed  at  once  to  the  trial  of  the  persons  charged  with 
violations  of  its  provisions. 

It  is  contended,  however,  in  behalf  of  the  appellant,  that  if 
the  intention  of  the  act  was  to  compel  the  person  arrested  by 
virtue  of  the  process  issued  by  a  magistrate,  to  be  tried  before 
a  court  of  special  sessions,  without  the  right  on  his  part  to  be 
released  from  custody  upon  giving  bail  to  appear  at  the  sessions, 
the  act  is  so  far  in  contravention  of  section  two  of  article  one  of 
the  constitution  which  declares  that  "the  trial  by  jury,  in  all 
cases  in  which  it  has  been  heretofore  used,  shall  remain  invio- 
late forever."  I  entertain  no  doubt  that  by  the  Avords  '■  trial  by 
jury"  as  there  mentioned,  was  intended  a  common  law  jury, 
which  consists  of  twelve  men.  But  I  am  satisfied  it  was  not 
intended  to  apply  to  a  case  like  the  present. 

Section  six  of  the  same  article  provides  that  '•  no  person  shall 
be  held  to  answer  for  a  capital  or  otherwise  infamous  crime,  (ex- 
cept in  cases  of  impeachment  and  in  cases  of  militia  when  in 
actual  service,  and  the  land  and  naval  forces  in  time  of  war,  or 
which  the  state  may  keep  with  the  consent  of  congress  in  time 
of  peace ;  and  in  cases  of  petit  larceny  under  the  regulation  of 
the  legislature,)  unless  on  presentment  or  indictment  of  a  grand 
jury,"  (fee.  The  framers  of  the  constitution  have  here  declared 
that  persons  charged  with  capital  or  otherwise  infamous  crimes, 
shall  not,  with  certain  exceptions,  be  held  to  answer  therefor, 
except  by  indictment  or  presentment  of  a  grand  jury  ;  clearly, 
as  it  seems  to  me,  leaving  all  other  cases  under  the  regulation 
of  the  legislature.  Persons  charged  with  crimes  not  capital  or 
otherwise  infamous,  may  therefore  be  held  to  answer  without  be- 
ing first  indicted  or  presented  by  a  grand  jury,  as  the  legislature 
shall  provide. 

But  it  is  said  that  in  whatever  court  the  person  charged  may 
be  tried,  and  whether  with  or  without  being  presented  by  a  grand 
jury,  he  is,  in  any  event,  entitled  to  have  his  guilt  or  innocence 
determined  by  a  jury  of  twelve  men.  The  several  written  con- 
stitutions of  this  state,  those  of  1777,  of  1821,  and  of  1846,  con- 
tain substantially  the  same  provisions  as  those  above  referred 
bo.     By  section  four  of  the  act  declaring  the  powers  and  duties 


MONROE— DECEMBER,  1855.  557 


The  People  v.  Fisher. 


of  justices  of  the  peace,  passed  April  13th,  1813,  (2  R.  L.  507.) 
petit  larceny,  misdemeanor,  breach  of  the  peace,  or  other  crimi- 
nal offense  under  the  degree  of  grand  larceny,  was  triable  by  a 
court  of  special  sessions,  and  tltat  without  any  jury  whatever 
This  continued  until  1824,  when  the  legislature  so  far  modified 
it  as  to  give  the  party  accused  the  right  to  be  tried  by  a  jury  of 
six  men.  (7>a?f?5  0/1824,  cA.  238,  §  47.)  By  the  revised  stat- 
utes, the  causes  triable  by  courts  of  special  sessions  are  men- 
tioned, and  are  contained  in  eight  specifications,  all  being  below 
the  degree  of  grand  larceny,  and  none  of  them  being  what  would 
be  denominated  infamous  in  the  sense  of  the  constitution,  except 
petit  larceny.     (2  R.  S.  711,  §  1.) 

The  section  of  the  constitution  which,  it  is  claimed,  secures  to 
the  appellant  a  trial  l)y  a  jury  of  twelve  men.  uses  the  expres- 
sion ^'- the  trial  hy  juryr  This  refers  as  well  to  all  other 
incidents  of  the  trial  as  to  the  number  of  men  necessary  to  con- 
stitute the  jury.  It  means,  as  I  think,  such  a  trial  as  is  con- 
templated by  section  six,  for  persons  charged  with  capital  or 
otherwise  infamous  offenses,  which  must  be  upon  presentment 
or  indictment  of  a  grand  jury,  and  in  a  court  of  record  wiin 
common  law  jurisdiction.  I  think  this  is  apparent  from  several 
considerations : 

1.  A  common  law  jury  trial  can  only  be  had  in  a  court  of 
common  law  jurisdiction,  both  as  regards  the  character  of  the 
court,  and  its  mode  of  procedure.  It  is  not  true  that  simply 
making  the  jury  to  consist  of  twelve  men,  constitutes  a  com- 
mon laAV  jury  trial. 

2.  Section  six  excepts  from  its  operation  petit  larceny,  which 
at  common  law  was  felony,  infamous  in  its  character.  The 
statute  of  1813  and  the  revised  statutes  referred  to,  expressly 
authorized  courts  of  special  sessions  to  try  for  that  offense, 
which  was  never  held  to  be  in  contravention  of  the  constitution, 
{Murphy  v.  77^6  People^  2  Coicen,  815.  The  People  v, 
Goodwin,  5  Woid.  251.) 

.^.  The  2d  and  Gth  sections  referred  to,  are  parts  of  the  same 
articles  of  the  constitution,  and  are  m  ])ari  inateria  ;  the  latter, 
securing  to  all  persons  charged  with  infamous  crimes  excepting 

Vol.  XX.  83 


658        CASES  IN  TOE  SUPP.EME  COURT. 


The  People  v.  Fisher. 


as  a favesiiid.  a  trial  after  due  presentment  or  indictment  by  a 
grand  jury,  leaving  the  trial  of  all  cases  of  misdemeanor  (»n 
the  footing  of  petit  larceny,  to  be  provided  for  by  the  legislature 
by  a  .jury  of  six,  twelve  or  any  other  number,  or  "without  a  jury 

4.  No  jury  trial  in  criminal  cases  was  ever  known  to  the 
common  law,  but  such  as  followed  upon  indictment  in  a  common 
law  court,  after  the  accused  was  in  custody,  had  been  arraigned 
and  hud  pleaded  to  the  indictment. 

5.  This  construction  makes  the  two  sections  harmonious  and 
sensible.  The  legislature  may  declare  criminal,  acts  which 
were  before  innocent,  as  in  case  of  the  statute  under  consider- 
ation. How  can  it  be  said  that  in  such  cases  a  jury  trial  has 
been  heretofore  used  ?  Section  two  is  expressly  limited  to 
cases  in  which  the  trial  by  jury  has  been  heretofore  used.  In 
cases  of  acts  made  criminal  by  a  statute  passed  after  the  adop- 
tion of  the  constitution,  no  trial  either  with  or  without  a  .lury 
has  been  used.  But  if  an  act  is  made  a  felony  by  statute  and 
thereby  becomes  infamous  in  its  character,  as  in  the  cases  of 
the  statutes  to  prevent  abduction  of  females  for  purposes  of  prosti- 
tution, and  to  prevent  seduction,  section  six  secures  to  the  person 
charged  with  its  violation  a  trial  by  jury,  after  due  presentment 
by  a  grand  jury. 

Section  two  only  requires  a  trial  by  jury  in  cases  where  it 
has  been  heretofore  used.  This  cannot  mean  cases  where  it 
might  or  might  not  be  required,  for  then  no  misdemeanor  could  be 
tried  by  the  special  sessions,  as  every  person  charged  with  any 
crime  was  liable  to  be  indicted  therefor  by  the  grand  jury,  and 
then  a  trial  l)y  jury  was  the  only  one  which  could  follow.  The 
only  practicable  interpretation  is  to  exclude  from  its  operation 
those  cases  where  it  was  competent  to  try  by  a  court  of  special 
sessions,  and  where  such  trials  had  been  in  use.  Ly  the  re- 
vised laws  of  1812,  before  cited,  all  offenses  under  the  degree  of 
grand  larceny  might  be  tried  in  those  courts,  and  that  law  con- 
tinued in  force  until  1830,when  the  revised  statutes  limited  the 
jurisdiction  of  courts  of  special  sessions  to  certain  specified 
cases.  The  constitution  has  been  twice  revised  since  1813,  and 
the  provisions  on  the  subject  have  been  continued,  substantially 


MONROE- DECEMBER,  1855.  659 

The  People  v.  Fisher. 

the  same  as  they  were  before  1813.  It  would  be  singular,  not  to 
say  absurd,  if  the  organic  law  is  to  vary  in  its  principles,  and 
the  objects  to  which  it  relates,  at  every  change  of  legislation 
It  should  be  interpreted  in  this  respect  in  the  same  way  as  if 
there  had  been  no  revision  since  1777.  The  fact  that  the  same 
thing  has  been  twice  asserted  since  that  time  in  the  same  sol- 
emn manner,  certainly  ought  not  to  change  the  interpretation 
justly  applicable  to  it  originally,  but  on  the  contrary,  should 
confirm  such  interpretation. 

For  the  foregoing  reasons,  I  am  of  the  opinion  that  the  decis- 
ion of  the  county  judge  was  correct,  and  should  be  affirmed. 

Judgment  affirmed. 

fMoNROB  Geneeal,  Tebm,  December  3,  1856.    Johnson,  Welles  and  Selden^ 
Jostices.^ 


APPEIDII. 


JUDGE    BARCULO. 

rpHE  foil  awing  biographical  sketch  of  the  late  Judge  Barculo  has 
-L  been  kindly  furnished  by  John  Thompson,  Esq.  of  the  Pough- 
keepsie  bar,  an  intimate  friend  of  the  deceased.  It  pays  a  feeling  and 
-appropriate  tribute  to  the  memory  of  one  who  adorned  the  bencn, 
and  graced  the  social  circle.  But  few  purer-minded  or  clearer  headed 
men  than  Judge  Baeculo  ever  occupied  a  judicial  station, 

"  Hon.  Sewaed  Barculo,  late  justice  of  the  supreme  court  for  the 
second  judicial  district,  died  in  the  city  of  New  York  on  the  20th  day 
of  June,  1854,  after  a  painful  and  lingering  illness,  which  he  suffered 
with  manly  fortitude  and  christian  resignation.  It  is  due  alike  to  his 
memory,  and  the  position  which  he  held  at  the  time  of  his  decease,  by 
tlie  suffrages  of  the  people,  that  some  notice  should  be  taken  of  his 
life  and  services.  It  is  one  of  the  consolations  of  a  good  man,  th?«t 
his  memory  shall  not  die ;  that  the  remembrance  of  his  services  and 
virtues  shall  be  preserved,  as  an  inheritance  to  his  children,  and.  an 
incentive  to  others,  who  may  be  treading  the  arduous  paths  of  public 
toil  and  trust. 

The  sentiment  which  seeks  its  gratification  in  the  desire  of  honest 
fame  while  we  Uve,  may  legitimately  be  extended  to  posthumous  re- 
nown. It  is  a  premonition  and  prophecy  that  we  are  not  all  mortal, 
but  that  something  survives  and  claims  a  consciousness  of  the  charac- 
ter it  leaves  behind. 

Seward  Barculo  was  the  son  of  Rev.  George  Barculo,  who,  at  the 
time  of  his  son's  birtli,  on  the  22d  day  of  September,  1808,  was  pas- 
tor of  the  two  churches  of  Hopewell  and  New  Hackensack,  in  Dutch- 
ess county.     The  child  was  an  early  favorite  of  his  uncle  Jacobus  L. 
(661) 


662  APPENDIX. 

Swartwout,  with  whom  he  spent  much  of  his  time,  and  who  subse- 
quently adopted  him  and  provided  for  his  education.  As  a  boy,  he 
was  remarkable  for  the  active,  though  mischievous  turn  of  his  mind, 
while  at  the  same  time  he  was  truthful  and  generous  fearless  and  firm. 
He  had  a  quick  and  retentive  memory,  and  committed  his  lessons  with 
rapidity  and  ease.  He  was  designed  for  a  farmer,  and  was  sent 
to  a  district  school,  but  his  uncle  observing  that  his  leisure  moments 
were  spent  in  the  study  of  algebra  and  mathematics,  changed  his  plans 
in  regard  to  him,  and  concluded  to  give  him  a  liberal  education. 

He  commenced  his  academic  course  in  December,  1826,  at  the  age 
of  18,  at  the  academy  in  Fishkill  village,  then  under  the  charge  of  the 
Rev.  Cornelius  D.  Westbrook.  His  health,  so  robust  while  on  the 
farm,  failed  the  next  spring,  and  he  was  obliged  to  travel,  and  study 
at  home,  reciting  to  Rev.  E.  Price,  four  miles  distant,  riding  over 
twice  a  week.  In  the  fall  of  1827,  he  accompanied  his  early  friend 
and  teacher,  W.  W.  Andrews,  to  the  home  of  his  father  :n  Cornwall, 
Conn,  where  he  fitted  for  college  and  entered  the  freshman  class  at 
Yale,  September,  1828.  He  remained  there  until  August,  1830,  and 
then  left  with  many  others,  owing  to  some  difficulty  with  the  faculty. 
He  however  received  an  honorable  discharge,  and  entered  Riitger's 
College,  New  Jersey,  where  he  remained  three  months,  and  returned 
liome,  the  studies  at  Yale  being  a  year  before  those  at  Rutger's.  Tjie 
faculty  Avere  displeased  at  this  step  and  expelled  him.  He  went 
back  to  college  all  unconscious  of  what  had  taken  place  in  his  absence, 
and  refusing  to  make  an  apology,  he  did  not  graduate,  and  commenced 
the  study  of  law  in  the  office  of  S.  Cleveland,  Esq.  in  Poughkeepsie, 
where  he  continued,  (except  a  year's  absence  at  a  law  school)  imtil  he 
was  admitted  to  the  bar  in  the  spring  of  1834,  in  his  26th  year. 
From  the  first  moment  when  he  commenced  the  study  of  the  law,  he 
determined  to  take  no  second  rank  in  the  profession,  and  therefore 
sought  not  only  to  perfect  himself  in  the  elements  of  legal  science,  so 
as  to  become  an  accurate  and  logical  pleader,  but  to  accomplish  him- 
s'^lf  as  a  skillful  advocate.  He  looked  to  this  field  as  the  highest 
«l  '-".ere  of  legal  effort,  regarding  the  intellectual  contests  of  the  bar  as 
displaying  greater  resources,  and  loftier  qualities,  mental  and  moral, 
ihan  any  other  department  of  the  profession,  often  remarking  to  his 
associates,  '  Learn  to  speak — argue — debate.  "Without  this  you  car 
.never  make  yourself  felt.'  And  his  own  practice  was  fully  up  to  the 
spirit  of  this  advice.  Into  every  debating  school,  moot  court  or  club, 
wliere  mind  comes  into  collision  with  mind,  he  went.  Law,  literature, 
^science,  politics,  social  and  national  questions,  were  all  propomided  and 


APPENDIX.  663 

discussed  in  these  humble  forums,  with  a  force  and  ability  not  often 
surpassed  upon  a  •w:'der  arena,  and  in  more  public  councils.  Nor  were 
these  transient  impulses;  but  pursued  diligently  year  by  year,  no 
matter  how  urgently  other  .engagements  might  press  upon  his  time. 
He  was  not  naturally  a  fluent  or  easy  speaker.  At  this  stage  of  his 
education,  his  manner  was  not  graceful,  nor  his  method  rapid,  and  it 
was  only  after  repeated  and  constant  preparation,  that  he  acquired  that 
ease  and  dignity  of  manner,  and  that  calm  and  logical  accuracy  of 
etatement  and  argument,  which  ultimately  made  his  charges  to  a  jury 
BO  clear  and  convincing.  He  had  none  of  the  usual  folly  of  students 
in  respect  to  the  power  of  genius  without  diligence,  but  relied  oi^/his 
careful  Investigation  of  every  subject  that  came  before  him.  The  bar 
of  Dutchess  county  had  just  before  this  furnished  some  of  the  finest 
examples  of  judicial  talent  then  in  the  state.  The  late  Judge  Emott 
had  recently  retired  from  the  bench  of  the  supreme  court,  full  of  years 
and  honor,  leaving  an  example  to  his  successors  worthy  of  all  Imita- 
tion, and  which  the  Hon.  C.  H.  Ruggles,  appointed  in  his  place,  did 
not  fall  to  emulate  ;  whose  kind.  Impartial  and  generous  administration, 
endeared  him  to  every  member  of  the  bar  wltli  Avhoni  he  came  in 
contact, 

Ellsha  "Williams,  with  his  portly  person,  splendid  flashing  eye,  and 
silvepy  hair  gathered  in  a  queue,  and  falling  behind  ;  with  his  melo- 
dious and  all-magical  voice,  had  left  the  impress  of  what  he  said  and 
did  upon  the  hearts  and  minds  of  all  who  thronged  to  hear  him,  at 
almost  every  circuit  then  held  in  this  county. 

Ambrose  L.  Jordan,  then  in  the  height  of  his  early  career,  graceful 
in  person  and  mind,  with  his  ruddy  complexion,  ricli  black  hair,  and 
towering  pile  of  forehead,  ample  and  massive,  beneath  which  flashed 
an  intellect  sharpened  by  contact  with  Ellsha  Williams  and  Martin 
Van  Buren,  and  men  of  that  character  and  stamp.  Tliese  were  vis- 
itors from  Columbia. 

Thomas  J.  Oakley  was  an  indigenous  plant;  sturdy  as  an  oak, 
strong,  simple,  grand ;  he  passed  along  the  line  of  *  his  great  argu- 
tr  jnt,'  convincing  by  the  unanswerable  chain  of  his  compact  logic, 
f.nd  breaking  away  like  an  inundating  stream,  through  the  amplitude 
of  its  quiet  waves,  those  embankments  of  liis  adversary,  which  a 
more  dashing  onslaught  might  not  have  shaken. 

James  Tallmadge,  quick,  nervous  and  keen,  commanding  the  atten- 
tion of  every  eye  by  his  lofty  port ;  his  luxuriant  liair,  curling  in 
masses  over  his  temples;  and  his  changing  countenance,  keeping  play 
with  every  emotion  of  his  soul;  and  hurling  Ills  keen  invective  rigl^t 


664  APPENDIX. 

and  left,  ov^erwlielming  his  antagonist  with  the  power  of  liis  brilliant 
and  rapid  sallies. 

Philo  Kuj^^gles,  always  sound,  sensible  and  safe. 

Stephen  Eno,  a  true  specimen  of  tlie  old  school  lawyer?,  with  kn^c 
onckles,  high  topped  boots,  and  green  bag,  thoroughly  raid  in  tlie 
principles  of  the  common  law,  and  who,  before  the  days  of  Kent  and 
Story's  commentaries,  perused  all  the  ancient  solid  works  of  legal 
science,  even  Wood's  Institutes  and  Fearne's  Contingent  Remainders, 
for  the  love  of  it,  a  practice  continued  to  his  dying  day. 

Most  of  these  men  were  just  passing  away  ;  like  a  moving  constel- 
lation composed  of  many  stars,  they  were  sinkmg  gradually  and  grace- 
fully out  of  view,  for  their  day  and  mission  was  over.  But  the  stu- 
dent caught  the  vision  of  their  glory,  and  felt  his  heart  beat  quicker 
as  he  surveyed  the  eminences  they  had  so  nobly  won.  Those  wlio 
remained  were  not  unworthy  to  be  set  as  examples. 

Henry  Swift  stood  foremost  among  these.  Acute,  subtile,  indefali 
gable ;  his  keen,  analytical  grasp  held  like  the  grip  of  deatli  to  hi: 
cause,  and  often  brouglit  it  forth  triumphant,  Avheu  the  spectator  felt 
that  the  battle  was  lost.  With  astonishing  facility  he  mined  through 
a  world  of  business,  and  won  laurels  and  wealth  for  himself  and  fam- 
ily. May  he  long  live  to  enjoy  them,  and  his  green  old  age  be  aa 
peaceful  as  his  life  has  been  full  of  professional  conflicts.  He  was  a 
generous  and  candid  foe. 

Stephen  Cleveland,  with  whom  Judge  Barculo  commenced  his  pro- 
'essional  studies — ''tlie  long  headed,''  as  he  was  sometimes  called — 
whose  meditative  and  comprehensive  genius  sought  to  fathom  the  phi- 
losophy of  law  ;  who  was  never  satisfied  witliout  reaching  the  ultimate 
reason ;  who  looked  with  a  noble  disdain  upon  all  tlie  caviling  and 
trickery  of  a  pettifogging  practice,  being  honor's  self  personified.  His 
tall  form  and  bald  crown  were  then  prominent  in  all  contests  of  the  bar. 

Robert  Wilkinson,  then  just  succeeding  his  brother-in-law,  T.  J. 
Oakley,  in  his  office,  having  moved  back  to  his  native  county,  and 
feeling  for  a  secure  footing  among  his  competitors,  and  flashing  out  in 
occasional  splendor  before  court  and  jury  in  his  able  presentation  of 
the  facts  of  his  case;  commanding  admiration  by  the  force,  eloquen'-o 
and  earnestness  of  his  argument. 

Charles  Johnston,  his  pale  countenance  full  of  legal  enthusiasm, 
and  his  industry  making  amends  for  his  feeble  constitution. 

Alas  !•  Of  the  above  list,  most  have  passed  away ;  they  move  in 
spoctral  review  before  the  eye  of  memory,  and  are  foigotten  by  the 
g-^neration  now  rushing  into  the  places  they  filled.     There  were  also 


APPENDIX.  gg5 

James  I.ooker,  N.  P.  Tallmadge,  R.  D.  Davis,  Alex.  Forbus,  Maiscn, 
and  otliers  tlien  at  the  bar.  Among  the  associates  of  Judge  Barculo, 
or  just  behind  him  were  C.  W.  Swift,  Wm.  "Wilkinson,  John  Thomp- 
son, H.  D.  Varick,  "Wm.  Eno,  and  at  a  later  day  James  Emott,  E.  Q 
Eldridge,  James  II.  "Weeks,  J.  B.  Jewett,  Gilbert  Dean,  and  others, 
now  at  the  bar  in  Dutchess  county. 

Judge  Barculo  came  to  the  bar  under  circumstances  which,  though 
generally  deemed  favorable,  are  in  reality  a  disadvantage  to  a  young 
raan  anxious  to  commence  the  trial  of  causes  at  nisi  prius.  He  en- 
tered into  partnership  with  Mr.  Cleveland,  who  was  then  doing  an 
extensive  and  lucrative  business,  whose  clients  were  always  anxious 
that  he  should  personally  try  their  causes.  By  the  interest,  however, 
which  the  junior  partner  took  in  cases,  and  the  thorough  manner  of  Ms 
preparing  them  for  trial,  he  rapidly  acquired  confidence,  and  began  to 
try  his  wing  unaided  by  senior  counsel,  and  although  he  was  not  re- 
markable for  brilliancy  or  polish,  yet  he  clung  to  his  points,  when 
taken,  with  great  tenacity  and  success. 

The  writer  of  this  well  remembers,  at  about  this  period,  the  case 
of  The  People  v.  Benschoten,  who  was  indicted  for  a  libel  on  one  of  our 
most  worthy  citizens,  owing  to  the  peculiar  nature  of  the  publication 
and  the  circumstances  of  the  parties,  great  interest  was  excited — the 
court  room  was  crowded — Judge  Ruggles  presiding  at  the  oyer.  The 
complainant,  to  insure  a  conviction,  had  secured  the  services  of  all  the 
most  eminent  counsel  then  at  the  bar  to  assist  the  district  attornev. 
Swift,  Johnson,  Wilkinson,  Eno,  an  array  crowding  two  tables,  while 
at  the  corner  of  one  of  them  sat  Barculo  alone,  with  his  client  cow- 
ering at  his  side.  While  the  jury  were  being  empanneled  he  said  not 
a  word,  nor  moved  a  muscle,  his  hair  thrown  negligently  over  his 
brows,  his  eye  resting  on  the  paper  in  his  hand,  and  his  lip  (his  deci- 
sive feature)  rigid  and  compressed.  Hon.  J.  W.  Brown  and  some 
others  occupied  the  bar.  At  the  proper  moment  he  rose  and  moved 
to  quash  the  whole  indictment,  consisting  of  three  counts.  The  oppo- 
site counsel  read  and  re  read  their  copies,  and  smiled  to  each  other. 
But  as  Barculo  proceeded  to  take  to  pieces  and  examine  separately 
every  averment  and  innuendo,  and  apply  the  principles  of  crimmai 
pleading  to  every  part,  they  found  he  had  unhorsed  the  whole  array, 
and  tried  to  answer  him  in  vain  :  the  indictment  was  quashed,  and  he 
loft  the  court  room  a  victor.  About  this  period  his  partner  was  much 
in  New  York,  and  Barculo  gradually  assumed  the  business  of  the 
office,  with  credit  to  himself  and  satisfaction  to  his  clients.  He  was 
employed  with  Mr.  Swift  and  Judge  Buell  of  Troy  in  the  celebrated 
Vol.  XX.  84 


6(33  APPENDIX. 

case  o(  Lansing  and  Russell,  tried  by  Mr.  Webster  and  Saniutl  Ste- 
vens at  tlie  Dutchess  circuit.  Et  excited  niucli  interest  on  account  of 
the  eminence  of  tlie  counsel  and  tlie  importance  of  tlie  questions  in- 
volved. The  testimony  occupijed  about  a  week,  and  after  its  close, 
Stevens  sat  up  all  night  to  arrange  his  argument ;  he  occupied  tlie 
court  the  whole  morning,  and  so  minute  and  thorough  was  his  argu- 
meivt  tliat  Mr.  Yf  ebster,  after  laying  aside  paper  after  paper  which  he  had 
prepared  for  summing  up  to  the  jury,  at  last  said  to  the  writer,  after 
throwing  down  his  last  sheet,  '  Stevens  has  left  me  nothing  to  say  ;  noth- 
ing P  But  he  did  say  something,  and  in  manner  that  no  other  man 
could  imitate  or  rival,  gathering  up  all  the  little  threads  of  his  case 
and  twisting  them  skillfully  into  a  cable,  that  no  weight  of  opposing 
logic  could  break.  It  was  under  the  impression  made  by  the  great 
argument  of  Webster,  that  Barculo  rose  to  address  the  jury.  He 
was  calm  and  self-possessed.  Every  thing  was  arranged  with  the 
nicest  care,  point  after  point  was  stated  and  fortified,  until  warming 
with  his  theme,  and  defiant  of  the  crushing  force  of  his  legal  adversa- 
ries, he  exclaimed — '  Gentlemen,  the  defendant  relies  upon  )iis  coun- 
sel and  not  upon  his  facts.  In  his  extremity  he  has  called  upon  the 
gods,  and  Jupiter  Tonans  is  here!  (pointing  to  Webster,)  but  if  here, 
it  is  evident  there  is  work  to  be  done,  which  no  power  but  that  of  Ju 
piter  can  accomplisli !  I  trust  the  times  are  past  wlien  law  and  justice 
are  to  rise  or  fall  obedient  to  the  Thunderer's  nod.' 

Barculo  at  this  time  was  in  the  liabit  of  attending  the  general  term 
of  the  supreme  court,  and  taking  cases  from  other  attorneys  to  argue 
there.  He  was  very  sincere  in  his  admiration  of  Judge  Bronson,  and 
thought  him  a  model  judge,  and  used  to  say  frequently  after  his  first 
visit  to  Europe,  at  which  time  he  frequented  the  English  courts,  that 
they  had  no  judge  there  in  law  or  equity  equal  to  Bronson,  and  that 
his  opinions  were  more  liighly  valued  in  Westminster  Hall  than  at 
home!  He  was  appointed  first  judge  of  the  county  court  in  Dutchess 
county,  in  April,  1845,  by  Gov.  Wright,  upon  the  unanimous  recom- 
mendation of  the  Dutchess  county  bar,  who  without  distinction  of 
party  acknowledged  his  peculiar  fitness  for  that  position  and  prevailed 
on  him  to  accept  it.  That  court  immediately  felt  the  benefit  of  his 
prompt  application  to  business,  its  accumulated  certiorari  calendar  was 
quickly  cleared,  and  in  the  sessions  and  in  the  trial  of  civil  actions  he 
soon  gave  indications  that  he  had  follen  into  his  proper  sphere.  On 
the  resignation  of  Judge  Ruggles  in  1846,  he  was  appointed  circuil 
judge,  by  Gov.  Wright.  The  commission  as  circuit  judge  had  been 
previously  sent  to  Hon.  Selah  B.  Strong,  now  one  of  tlie  justices  of 


APPENDIX.  667 

the  2d  district,  who  not  onlj  dedined  the  appointment,  but  magnani- 
mously recommended  the  bestowal  of  the  ofBce  upon  Judge  Bai-culo, 
with  whom  he  was  then  but  slightly  acquainted,  but  of  whose  fitness 
and  capacity  for  that  position  he  had  formed  a  high  estimate,  and  who 
has  since  expressed  the  gratification  he  felt  in  knowing  how  fully  his 
anticipations  were  realized.  He  entered  upon  this  new  sphere  of  duty 
with  modesty  and  diligence,  yet  with  a  firmness  and  dignity  not  usual 
for  one  of  his  age.  He  felt  the  delicacy  and  difficulty  of  occupying  a 
seat  recently  filled  by  Ruggles  and  Emott,  judges  so  widely  known, 
and  universally  esteemed,  and  under  whose  administration  the  bar  of 
the  2d  district  had  witnessed  high  models  of  judicial  excellence  and 
learning.  It  is  sufficient  to  say  the  robe  worn  by  his  predecessors 
was  neither  sullied  nor  disgraced  on  his  shoulders.  He  soon  devel- 
oped those  qualities  of  mind,  for  which  he  afterwards  became  some- 
what remarkable,  to  wit,  an  almost  intuitive  insight  into  the  heart  of 
the  case  before  him,  and  of  the  principle  of  law  or  equity,  by  which 
it  was  governed.  No  ingenious  statement  of  counsel — no  round 
about  presentation  of  the  facts — no  sophistry  of  argument,  could  baf- 
fle the  quick  comprehension  with  which  he  sifted  out  at  once  the  vital 
from  the  unimportant,  and  discriminated  the  marrow  and  core  of  tlie 
case  from  its  inconsequential  concomitants.  The  quickness  and  vigor 
of  his  mind  in  this  respect  was  almost  immediately  put  to  the  test  in 
the  case  of  the  The  People  v.  Bodine,  which  came  on  for  trial  at  the 

Orange  circuit  in  1846,  having  been  twice  before  tried  in  New 

York.  Some  of  the  most  eminent  counsel  in  the  state  were  engaged  in 
the  case,  and  every  point  was  contested  with  a  zeal  and  pertinacity  not 
often  witnessed.  David  Graham,  jr.,  acute  and  clear,  though  refining, 
plain  in  statement,  fertile  and  rich  in  imagery  and  illustration,  brought 
tlie  wealth  of  his  learning,  and  the  vehemence  of  his  zeal  to  the  prison- 
er's defense.  John  W.  Brown,  now  justice  of  the  supreme  court,  sat  by 
his  side.  Bold,  logical  and  enthusiastic,  he  seized  with  unerring  grasp 
,upon  every  point  and  principle,  lifted  them  out  of  the  elements  that 
concealed  them,  and  made  them  stand  forth  revealed  and  lumin- 
ous to  every  eye ;  nothing  escaped  the  logical  grasp  of  his  mind,  or 
withstood  the  force  of  his  vigorous  onsets.  James  R.  Whiting, 
versed  in  all  the  technology  of  criminal  law,  watching  with  astute  and 
wakeful  attention  every  opening  in  the  joints  of  his  adversary's  har- 
ness, and  ready  to  spring  with  every  advantage  on  his  foe. 

It  was  before  such  men,  and  surrounded  by  minds  so  vigorous  and 
accomplished,  and  in  a  cause  so  momentous  (a  trial  for  life  !)  that  he  was 
-»Iled  to  preside  for  the  first  time,  and  so  ably  did  he  dispose  of  every 


(36S  APPENDIX. 

olijection,  so  nicely  did  lie  discriminate  between  the  specious  and  tJ  e 
sound,  tlic  plausible  and  solid,  so  fairly  did  he  present  the  case  to  th« 
jury,  that  all  parties  were  not  only  satisfied,  but  loud  in  the  expres- 
sion of  their  praise.  He  justly  merits  what  Shiel  says  of  Buslis, 
*  He  had  the  art  of  exposition  and  the  elucidating  quality,  so  impor- 
tant in  the  conduct  of  ordinary  affairs ;  the  power  of  simplifying  in 
the  highest  degree,  he  evolved  with  a  surprising  facility  the  most  in 
tricate  facts  from  the  most  embarrassing  complication,  and  reduced  in 
a  moment  a  chaotic  heap  of  incongruous  materials  into  symmetry  and 
order.'  His  most  arduous  duties  at  this  time,  lay  in  what  he  was 
.called  to  do  as  vice  chancellor.  The  second  district  embraced  a  vast 
variety  of  chancery  business,  its  commercial  wealth  and  population 
were  rapidly  augmenting,  and  the  vice  chancellor's  desk  was  piled  up 
with  cases,  through  which  he  toiled  with  diligence  and  dispatch.  No 
long  delay  until  the  argument  was  forgotten ;  no  piles  of  dust  accu 
mulating  on  the  papers  grown  brown  with  age  ;  no  '  Jarndyce  v.  Jarn 
dyce,''to  make  the  temples  white,  and  the  brain  sick  with  the  law's 
delay  ;  he  decided  tlie  cause,  and  the  parties  were  left,  to  acquiesce  or 
appeal. 

When  the  new  constitution  of  1847  went  into  effect,  he  was  elect- 
ed one  of  the  justices  of  the  supreme  court  for  the  2d  district,  and 
drew  the  longest  term.  His  associates  were  Justices  McCoun, 
Strong  and  Morse.  The  code  of  practice  was  soon  prepared  and  put 
into  operation.  It  had  the  effect  of  extirpating  from  Judge  Barculo'a 
mind  tlie  last  remains  of  a  radical  and  reforming  spirit. 

His  predilections  were  ultra  democratic,  and  progressive,  but  when 
he  saw  the  ark  of  the  law,  venerable  and  sacred,  profaned  by  unholy 
fingers,  and  its  time-honored  principles  and  practices  swept  away,  as 
he  tiiought,  by  a  reckless  effort  at  change,  he  rebelled  with  the  whole 
force  of  his  mind  against  the  desecration,  and  although  he  administer- 
ed the  code  fairly,  so  far  as  its  conflicting  provisions  were  at  first 
susceptible  of  being  understood,  yet  he  expressed  himself  in  no  meas- 
ured terms  upon  the  folly  and  impracticability  of  many  of  its  provis- 
ions, and  often  alleged  that  the  interests  of  the  state  demanded  its 
entire  rejieal,  more  time  being  wasted  by  courts  and  counsel  in  learn- 
ing Avhat  the  code  meant  than  in  trying  the  merits  of  the  action;  and 
it  yet  remains  to  be  seen  how  far  he  was  in.  error.  He  was  sometimes 
hasty  in  his  expressions,  when  the  code  was  under  discussirm.  In 
the  case  of  Alger  v.  Scovil,  6  How.  Pr.  Rep.  144,  he  says,  'It  is  in 
truth  greatly  to  be  regretted  that  those  who  assumed  the  responsi- 
bility of  devising  a  remedy  for  the  insufficiencies   of  the  former  svs 


APPENDIX.  ggg 

tem,  did  not  more  fully  understand  and  appreciate  the  true  cause  and 
nature  of  the  evils  to  be  remedied,  which  arose  mainly  from  the  want 
of  sufficient  judicial  force  to  dispose  of  the  rapidly  increasing  business 
of  a  growing  state  and  a  commercial  people.  But  in  this  age  of  pro- 
gress it  not  unfrequently  happens  that  alteration  is  mistaken  for  refor- 
mation, and  the  public,  feeling  the  necessity  of  some  improvement,  is 
too  often  contented  with  a  mere  change.'  It  was  on  the  argument  ,>f 
this  case,  that  D.  D.  Field,  Esq.  one  of  the  codifiers,  after  contending 
for  his  view  of  the  case,  exclaimed,  '  I  know  that  was  the  intent  of 
the  legislature,' '  1  beg  your  pardon,'  said  the  judge,  'the  legislature 
meant  exactly  what  they  have  said  and  nothing  else.'  *  "Well,'  replied 
the  counsel,  'I  know  the  codifiers  meant  so.'  'Ah!'  responded  the 
judge,  '  very  likely !  They  seem  to  have  meant  one  thing  and  said 
another  very  often,  if  your  argument  is  good.'  It  was  on  this  same 
occasion  that  a  wordy  lawyer,  bent  on  making  a  speecli.  was  endeav- 
oring to  show  that  his  client  could  get  nothing  if  an  assignment  was 
Iield  good,  '  May  it  please  your  honor  1 '  continued  tlie  orator,  '  the 
execution  will  be  made  out,  following  the  solemn  judgment  of 
the  court ;  the  officer  will  take  it  ni  his  hand,  and  proceed  to  the 
premises  of  the  defendant ;  he  will  open  the  door  and  gaze  round  upon 
empty  shelves  !'  Here  the  judge's  brow  began  to  contract.  '  Sir  ! 
vacancy  will  open  before  him.'  The  judge  broke  in,  '  Do  you  mean 
to  say  he  will  find  nothing  to  satisfy  the  executiou?'  'Yes,  you* 
honor.'  '■Well,^  said  the  judge,  '■why  did^nt  you  say  so  half  an 
hour  ago  !' 

He  held  his  position  of  justice  of  the  supreme  court  for  six  and  a 
half  years,  under  the  new  constitution :  with  what  abihty  and  success, 
his  published  opinions  upon  the  various  questions  of  practice,  and  of  law 
and  equity,  in  the  volumes  of  Howard's  Practice  Reports,  and  Bar- 
bour's Supreme  Court  Reports  will  abundantly  show.  It  is  said  by  his 
judicial  brethren,  that  no  member  of  the  court  was  more  candid  and 
severe  in  the  re-examination  of  his  acts  at  circuit,  than  himself,  when 
they  came  up  for  review,  and  that  he  had  no  pride  of  opinion  to  pre- 
vent him  from  seeing  his  own  errors,  and  uniting  promptly  to  correct 
them.  This  trait  is  highly  important  so  long  as  we  retain  the  anom- 
aly in  our  judicial  system  of  a  judge  reviewing  himself! 

Judge  Barculo  had  no  negative  characteristics ;  none  of  the  easy  and 
facile  non  conmiittalism  upon  questions  of  politics  or  law  which  has 
been  souglit  for  of  late  to  make  a  man  available,  and  which  alwayg 
indicates  weakness  and  mediocrity.  He  came  to  his  conclusions  rap- 
idly, and  was  open  aid  fearless  in  their  avowal,  and  this  as  well  wheu 


670  APPEOT)IX. 

upon  the  bench  in  the  discharge  of  liis  official  duties,  as  in  the  walks 
of  private  life  He  was  a  determined  foe  to  the  licentiousness  of  the 
press ;  no  man  was  more  tenacious  of  its  freedom ;  no  one  lamented 
more  sincerely,  or  would  have  punished  more  severelj-  its  prostitution. 
The  case  of  The  Peojile  v.  Wilkes^  a  few  years  ago,  excited  great  at- 
tention. It  was  tried  at  the  Dutchess  oyer,  before  the  judge,  and  em- 
ployed some  of  the  best  jury  talent  of  the  state.  The  libel  was  upon 
A.  L.  Jordan,  then  attorney  general,  and  arose  out  of  some  transactions 
in  New  York.  The  attack  was  very  abusive  and  violent.  Jordan, 
with  his  young  friend  Calvin  Mather,  conducted  the  prosecution,  and 
Daniel  E.  Sickles  and  J.  T.  Brad_v,  the  defense.  The  charge  of  the 
judge  went  very  far  in  securing  conviction  ;  it  was  logical,  clear, 
pointed  and  pungent,  tracing  tlie  distinction  between  liberty  and  licen- 
tiousness, the  right  to  print,  and  the  right  to  abuse  public  and  private 
citizens,  and  pour  over  the  heads  of  others  the  gall  and  wormwood  of 
a  malicious  and  depraved  heart.  From  the  tone  of  his  charge,  and  the 
rather  free  expression  of  his  opinion,  the  prisoner  apprehended  a  se- 
vere sentence,  and  quietly  'stepped  out,'  while  his  adroit  counsel  were, 
'  all  unconsciously'  pressing  some  motion  upon  the  attention  of  tlie 
judge.  Wilkes  escaped,  much  to  the  judge's  mortification,  and  domi- 
ciled for  a  time  in  New  Jersey,  and  afterwards  left  for  Europe,  wlien 
the  matter  died  away.  The  firmness  and  energy  of  his  character  were 
so  marked  and  prominent  as  to  seem  almost  like  bluntness,  to  those 
who  did  not  thorouglily  know  him.  He  was  sometimes  impatient  that 
one  should  labor  through  so  many  words  to  reach  a  conclusion  which 
stood  out  clear  to  his  own  mind.  Yet  the  occasion  was  rare,  that  he 
did  not  listen  patiently  and  fully  to  all  that  was  said. 

I  know  not  that  he  was  ever  accused  of  favoritism.  It  is  true,  that 
a  jury  could  usually  tell  where  his  private  opinions  lay,  and  he  would 
sometimes  help  tlie  presentation  of  the  case,  where  counsel  were  inef- 
ficient ;  but  the  opinions  formed  were  always  upon  the  proof,  and  not 
from  any  feeling  for  the  party.  If  any  complaints  were  made,  they 
wer.-  founded  usually  on  tlie  party's  defeat,  and  fault  finding  with  the 
judge  in  such  cases  is  common  enough  everywhere  I 

Let  me  conclude  this  imperfect  sketch  by  alluding  to  some  of  his 
private  habits  and  characteristics,  for  these  after  all  are  tlie  man. 
showing  his  tastes  and  feelings  when  official  cares  are  laid  aside,  and 
he  follows  the  bent  of  his  Oivn  inclination. 

He  was  one  of  the  most  extensive  readers  I  ever  knew.  The  pub- 
lic library  of  this  city  consists  of  several  thousand  volumes,  many  of 
them  rare  and  valuable  books.     The  judge  took  great  interest  In  this 


APPENDIX.  g71 

library,  and  in  the  selection  of  its  volumes,  and  I  very  rnnch  d  )nbt  at 
the  time  of  his  death,  whether  there  was  a  readable  book  in  it,  of  which 
he  did  not  know  the  substance  and  scope.  He  usually  had  three  or 
four  of  the  volumes  on  his  table,  and  seldom  came  from  his  residence, 
or  left  the  city  for  home,  without  one  or  two  were  seen  under  his 
arm.  He  was  the  most  varied  and  voracious  reader  amons:  us,  and 
yet  I  never  knew  him  make  a  parade  of  what  he  did  in  this  respect. 
He  had  a  keen  literary  taste,  and  indulged  in  it  in  this  manner,  more 
than  in  committing  any  results  of  his  reading  or  reflection  to  paper. 
He  mastered  the  contents  of  a  book  with  great  facility,  not  by  plod- 
ding through  every  line  of  it,  but  by  taking  hold  upon  its  leadijig 
points  and  gathering  out  the  substance  of  them ;  an  example  not  always 
safe  to  follow,  but  still  very  necessary  to  an  extensive  reader.     He 

was   highly  indignant  when  Judge  's  spiritual    visions  were 

published.  He  thought  it  an  impeachment  of  the  good  sense  of  the 
judiciary,  and  wrote  and  delivered  a  lecture  on  the  subject  before  the 
lyceum  of  this  city,  in  which  he  characterized  the  whole  afiair  as  a 
'  miserable  humbug  and  delusion  unworthy  of  serious  or  scientific 
attention.' 

He  spent  considerable  time  and  money  in  horticulture.  He  had 
about  five  acres  of  land  highly  cultivated,  and  his  varieties  of  straw- 
berries, peaches,  pears,  &c.  became  quite  celebrated  in  this  region.  He 
paid  attention  also  to  grape  culture  and  the  manufacture  of  wine,  of 
which  he  left  some  fine  varieties.  He  contributed  some  papers  to  the 
*  Horticulturist,'  on  the  varieties  and  management  of  fruit. 

He  viaited  Europe  three  times,  as  much  to  be  on  the  ocean  in  his 
passage  as  to  observe  for  himself  the  manners  and  customs  of  foreign 
society,  and  the  machinery  of  their  social  and  political  life :  the  first 
time  in  1846;  again  in  1850  ;  and  the  third  and  last  time,  the  April 
previous  to  his  decease.  , 

His  fondness  of  the  water  amounted  to  a  passion  ;  owning  a  sail  boat, 
he  would  occasionally  take  his  son  Sidney — a  noble  boy  of  quick  in- 
telligence and  manly  character,  now,  alas  1  sleeping  by  his  side — and, 
hoisting  sail,  pass  with  a  favorable  wind  to  New  York,  across  the  bay, 
and  up  into  Shrewsbury  river,  where  he  usually  passed  the  summer, 
principally  in  sailing  and  bathing.  He  was  worse  in  London  and 
Paris  after  his  last  voyage,  but  uncomplaining;  always  kind  and 
considerate  to  those  about  him ;  and  would  insist  on  going  witb  his 
young  friends  to  places  of  interest,  that  their  visit  might  not  be  marred 
by  his  afflictions.  Finding  himself  no  better,  in  June  he  turned  liis 
face  homeward,  and,  growing  feebler  and  feebler,  he  had  one  great 


672  APPENDIX. 

wish,  not  to  go  down  into  tlie  deep,  but  to  die  in  his  liomo,  and  sur^ 
rounded  by  those  who  were  dear  to  him.  But  that  home  he  neveJ 
reached.  His  unconscious  dust  reposed  a  while  in  its  now  desoL.te 
halls,  and 

*  Gently  we  laid  him  down  to  rest, 
With  his  own  white  roses  on  his  breast.' 

He  lies  in  the  cemetery,  which,  shortly  before  his  departure  for  Eu 
rope,  he  was  most  active  in  procuring,  as  if  in  prophetic  anticipation 
that  he  would  soon  occupy  it. 

His  only  son^  Sidney,  was  killed  by  an  accidental  fall,  eleven  weeks 
afterwards — and  father  and  son  rest  together  in  hope. 

The  same  year  he  came  to  the  bar  he  married  Cornelia,  daughter  of 
John  H.  Tallman,  Esq;  of  New  York  city,  who  with  three  daughters, 
survives. 

Judge  Barculo  was  a  member  and  communicant  of  the  Protestaat 
Episcopal  Church,  and  met  a  martyr's  death  with  Cliristian  heroism. 

He  well  merited  the  epitaph  inscribed  upon  liis  monument  : 

'  In  Society,  an  Ornament; 

In  the  State,  a  Judge,  fearless,  dignified  and  incorruptible ; 

In  habit,  simple  and  pure. 

HE  DIED  YOUNG,  BUT  MATURE 

IN    USEFULNESS    AND    FAME, 

Adorning  Jurisprudence  by  the  clearness  of  his  decision!, 
And  illustrating  Religion  by 
THE  STRENGTH  OF  HIS  FAITH  !' '» 


INDEX. 


A 

ACCOUNT. 

3«e  Injunction,  1. 

Joinder  of  Claims,  2. 

ACTION. 

See  Board  op  Supervisors. 
Creditor's  Suit. 

AGREEMENT. 

1.  Construction  and  validity. 

The  plaintiffs  agreed  with  the  defend- 
ant that  they  would  subscribe  for, 
and  become  responsible  to  take  fifty 
shares  of  the  capital  stock  of  the  Troy 
and  Boston  Rail  Road  Company,  of 
the  estimated  value  of  $5000,  and  to 
pay  $500  upon  the  subscription. 
They  fui  ther  agreed,  after  having  paid 
the  $500,  to  assign  and  transfer  to  the 
defendant,  by  a  proper  instrument  of 
conveyance,  all  the  said  stock,  &c. 
The  defendant,  in  consideration  there- 
of, agreed  that  after  the  plaintifts 
should  have  paid  the  sum  of  $600, 
and  upon  their  executing  and  deliv- 
ering to  him  "  an  assignment  or  trans- 
fer of  all  said  stock,"  he  would  exe- 
cute and  deliver  to  them  a  covenant 
to  pay  the  remainder  of  the  amount 
which  would  be  due  upon  the  sub- 
scription, and  indemnify  the  plaintiffs 
and  save  them  harinkss  against  all 


claims,  &c.  arising  in  consequence  of 
their  liability  incurred  by  becoming 
stockholders  in  the  said  company. 
The  plaintiffs,  in  pursuance  of  this 
agreement,  executed  and  tendered  to 
the  defendant  an  assignment  of  50 
shares  of  the  capital  stock  of  the  rail 
road  company,  which  they  had  [)re- 
viously  subscribed  for,  and  on  which 
they  had  paid  $500,  and  also  a  power 
of  attorney  to  transfer  the  stock  on 
the  books  of  the  companj-.  The  by- 
laws of  the  company  provided  that 
no  stock  should  be  transferred  on  the 
books  of  the  corporation  until  thirty 
per  cenf^on  each  share  had  been  paid 
in,  unless  by  consent  of  the  board  of 
directors.  The  plaintiffs  made  appli- 
cation for  such  consent,  and  it  was 
refused.  The  defendant  declined  ac- 
cepting the  assignment,  on  the  ground 
that  it  was  not  a  compliance  with  the 
terms  of  the  agreement.  The  com- 
])any  sued  the  plaintiffs  to  recover  the 
balance  of  their  subscription,  and  ob- 
tained a  judgment  for  $4690.85, 
which  the  plaintiffs  paid.  At  the 
time  the  assignment  of  the  stock  was 
tendered,  and  at  the  time  of  the  trial; 
the  stock  was  worth  from  40  to  43 
cents  on  the  dollar.  Held  \.  T\\a.\,\t 
was  enough  that  the  plaintiffs  had 
executed  an  instrument  which  would 
transfer  their  interest  in  the  stock  to 
the  defendant ;  it  being  no  part  of 
their  agreement  that  they  should  pro- 
cure a  transfer  of  the  stock  upon  tlie 
books  of  the  company. .  2.  That  the 
instrument  executed  by  the  plaintiffs 
would  enable  the  defendant,  if  he  de- 
sired it,   to  have  the  transfer  made, 


Vol.  XX. 


85 


674 


INDEX. 


upon  the  books  of  the  corporation, 
upon  complying  with  its  by-laws. 
And  that  it  was  for  liim,  and  not  the 
plaintiffs,  to  pay  the  residue  of  the  30 
per  cent  required  before  a  transfer 
upon  the  books  could    be  obtained. 

3.  That  having  an  instrument  which 
would  authorize  him  to  procure  such 
transfer  to  be  made,  upon  making 
the  requisite  payment,  it  did  not  lie 
with  the  defendant  to  object  that  the 
transfer  had  not  been  actually  made. 

4.  That  the  amount  which  the  plain- 
tiffs had  been  compelled  to  pay,  upon 
the  judgment  against  them,  as  the 
consequence  of  the  defendant's  breach 
af  liis  agreement,  was  the  proper 
measure  of  the  plaintiff's  recovery 
tor  such  breach.   Orr  v.  Blgelow,  21 

>.  By  a  written  contract  made  between 
N.'  T.  and  S.  P.  T.,  the  latter  agreed 
to  pay  the  former  S'1300  in  install- 
ments, and  in  consideration  thereof 
N.  T.  agreed  that  S.  P.  T.  might 
have  the  possession  and  use  of  a  cer- 
tain canal  boat,  &c.,  unless  default 
vjhould  be  made  in  the  payment  of 
the  said  sum  of  SI  300,  or  some  part 
theieof,  or  unless  S.  P.  T.  should  do 
or  attempt  to  do,  anj*  of  the  acts  by 
tht!  HLneement  prohibited;  in  either 
of  which  cases  N.  T.  might  take  pos- 
session of  the  boat,  &c.  On  the  full 
paymbnt  of  the  $1300,  N.  T.  was  to 
execute  and  deliver  to  S.  P.  T.  a  bill 
of  sale  of  said  boat,  and  put  him  in 
possession,  S.  P.  T.  agreed  not  to 
take  or  attempt  to  remove  the  boat 
out  of  the  stRte,  or  transfer  or  attempt 
to  transfer,  the  same  without  the  con- 
sent of  N.  T.,  or  to  do  any  thing  to 
prejudice  his  title.  In  case  default 
should  be  made  in  the  payment  of  the 
said  sum  of  S1300  or  any  part  there- 
of, N.  T.  was  to  have  the  right  to 
take  and  sell  the  boat  and  apply  the 
proceeds  to  pay  the  balance  unpaid, 
paying  over  the  surplus,  if  any,  to 

5.  P.  T.  It  was  further  provided 
that  nothing  contained  in  the  contract 
should  be  so  construed  as  to  give 
S.  P.  T.  any  right  or  title  to  the 
boat,  until  such  payment  should  be 
fully  made ;  except  the  right  to  pos- 
sess and  use  the  same,  in  the  manner 
and  upmi  the  conditions  in  such  con- 
tract mentioned.  Held  that  this  in- 
strument was  an  executory  contract 
for  a  sale  of  the  boat  on  condition, 
and  not  a  mortgage  thereof;  the 
parties  intending,  in  ies[)ect  to  the 
title,  simply  to  agree  for  the  sale  and 
purchase  of  the  boat  for  the  sum  spe- 


cified ;  th.e  sale,  and  vesting  of  the 
title,  to  be  upon  the  condition  of  pay- 
ment according  to  the  agreement, 
and  until  payment  the  title  to  remain 
in  N.  T.  JoHNsoNj  J.  dissented. 
Brewster  v.  Baker,  o6i 

3.  Held,  further,  that  S.  P.  T.  could 
not  acquire  any  title  fo  the  boat  until 
he  had  paid  the  price;  and  therefore 
could  not  transfer  any  title  to  a  third 
person,  so  as  to  enable  the  latter  to 
hold  the  boat  as  against  N  T.  or  his 
assignees  and  grantees.  ib 

4.  There  is  a  distinction  between  con- 
tracts which  are  immoral  and  crimi- 
nal and  those  that  are  merelj"  void. 
Where  the  contract  is  simply  void  and 
not  criminal,  assistance  may  be  given 
to  a  party  to  recover  back  his  money, 
while  the  contract  remains  executory. 
Where  money  has  been  paid  on  an 
illegal  contract  which  has  been  exe- 
cuted, and  both  parties  are  in  pari 
delicto,  neither  of  them  can  recover 
from  the  other  the  money  so  paid. 
Pepper  v.  Haight,  429 

5.  A  distinction  also  exists  wliere  the 
action  is  in  affirmance  of  the  contract, 
and  the  object  is  to  enforce  its  per- 
formance, and  where  the  action  pro- 
ceeds in  disaffirmance  of  it.  ib 

6.  Where  both  parties  are  equally  guil- 
ty, as  where  they  make  a  contract 
which  is  illegal,  because  contrary  to 
the  provisions  of  a  statute,  or  the 
general  principles  of  public  policy, 
the  rule  potior  est  conditio  defenden- 
tis  applies.  ib 

7.  The  principle  is  that  no  court  will 
lend  its  aid  to  a  man  upon  an  immor- 
al or  illegal  contract — not  for  the 
sake  of  the  defendant,  equally  in  iiiult 
with  the  plaintiff,  and  in  whose 
mouth  it  does  not  lie  to  say  the  con- 
tract is  immoral  or  illegal — but  be- 
cause the  court  will  not  lend  its  aid 
to  such  a  plaintiff.  ib 

8.  Where  a  mortgage  contains  a  clause 
showing  that  a  part  of  its  consider- 
ation is  the  sale  of  certain  premises 
in  the  possession  of  a  third  person, 
and  held  adversely  by  him,  under  a 
claim  of  title,  the  contract  is  directly 

•  in  conflict  with  the  statute  prohibit- 
ing the  sale  of  pretended  titles.  (2 
R.  S.  691,  ^3  6.)  And  both  j.arties 
are  guilty  of  a  misdemeanor,  and  the 
contract  is  entirely  void.  ib 


INDEX. 


675 


9.  An  executory  contract,  for  the  sale 
and  purchase  of  land,  was  made  be- 
tween the  plaintiff'  and  defendant,  by 
which  the  latter  Mas  to  have  the  oc- 
cupation and  possession  of  the  prem- 
ises, so  Ions  as  he  should  fulfill  and 
comply  with  the  stipulations  of  the 
contract.  Butif  he  .should  make  de- 
fault, then  the  atrreenient  should  be 
void,  and  the  plaintiff"  was  to  be  at 
liberty  to  immediately  enter  into  the 
possession  and  occupancy  of  the 
])remises,  and  was  to  be  forever  dis- 
cliarged  from  the  aareement.  Held 
that  upon  a  breach  of  the  contract  by 
the  defendant,  the  plaintiff"  had  a  right 
to  enter,  without  notice,  or  demand 
of  possession.    Stone  v.  Spragve,  509 

2.  Performance. 

10.  A  contract  for  the  sale  and  purchase 
of  land  provided  that  on  the  payment 
of  S745,  in  five  years,  with  annual 
interest,  the  defendant  should  be  en- 
titled to  a  deed.  On  the  day  before 
the  time  for  payment  ex{)ired,  the  de- 
fendant tendered  the  plaintiff"  the 
amount,  in  specie,  and  requested  a 
deed.  The  plaintiff"  replied  that  he 
would  not  receive  any  thing,  nor  give 
a  deed ;  placing  liis  refusal  upon 
the  ground  that  he  had  not  enjoyed 
such  privileges,  in  the  hou-^e,  as  he 
ought  to  have  had,  and  saying  that 
he  and  the  defendant  must  settle, 
and  he  would  not  give  any  deed  till 
they  did.  The  parties  then  agreed  to 
leave  the  question  as  to  damages, 
to  M.  and  W.,  and  the  plaintiff' agreed 
to  see  W.  and  ascertain  when  he 
could  attend  to  the  matter.  An  in- 
dorsement was  then  made  upon  the 
contract,  signed  by  the  plaintiff"  but 
not  under  seal,  extending  the  time 
of  pr.yment  to  the  25tli  of  April. 
On  or  "about  that  day  the  money  was 
again  off"ered  to  the  plaintiff'  and  a 
deed  requested.  He  again  refused 
to  receive  the  money,  or  to  convey ; 
saying  he  had  not  been  able  to  get  W. 
to  attend  to  it :  another  indorsement 
was  then  made  on  the  contract,  ex- 
tending tlie  time  of  payment  to  the 
loth  of  May.  A  lew  days  before  the 
15th  of  May  the  defendant  again 
tendered  the  money  to  the  plaintiff, 
if  he  would  execute  a  deed ;  which 
was  refused.  Held  that  the  defend- 
ant had  substantially  complied  with 
the  terms  of  the  agreement,  so  as  to 
be  entitled  to  a  deed  for  the  prem- 
ises ;  and  that,  the  defendant  having 
been  prevented  from  performing  the 


contract,  at  the  day,  by  the  act  of  the 
plaintiff",  the  latter  could  not  be  al- 
lowed to  take  advantage  of  his  own 
wrong,  by  insisting  that  the  time  for 
performing  the  agreement  by  the  de- 
fendant had  expired  ib 

11.  Heldaho,  that  proof  that  at  the  time 
of  the  last  tender,  and  at  other  times, 
the  plaintiff  agreed  by  i)arol,  with  the 
defendant,  not  to  take  advantage  of 
the  expiration  of  the  contract,  say- 
ing that  the  lapse  of  a  few  days  would 
not  make  any  difference  with  him; 
and  that  the  money,  together  with  a 
deed,  ready  to  be  executed  by  the 
plaintiff,  were  tendered,  on  the  18th 
of  May,  three  days  after  the  expira- 
tion of  the  time,  as  last  extended,  was 
proper  evidence,  and  ought  to  have 
been  received.  to 

12.  The  time  for  performing  a  written 
contract  under  seal,  may  be  enlarged 
by  parol.  ** 

3.    When  complete  and  binding. 

13.  On  the  30th  of  August,  1853,  thede- 
fendants  proposed  to  the  plaintiffs,  by 
letter,  as  follows:  ''We  will  engajge 
to  furnish  you  a  boat  load  of  flour, 
the  last  of  next  week,  same  quality 
sent  G.  and  M.,  at  $4.7G,  free  to 
boat."  This  proposition  was  imme- 
diately answered  by  the  plaintiffs  in 
these  words :  "  We  will  take  the 
boat  load  flour,  as  jier  yi>ur  proposi- 
tion in  yours  of  the  oOth  inst."  Held 
that  this  was  a  clear  and  unqualified 
acceptance,*  by  the  idainliffs,  of  the 
defendants  projjosal,  and  that  as  soon 
as  the  plaintiffs'  letter  had  gone  be- 
yond their  control  the  bargain  was 
complete,  and  it  became  mutually 
obligatory  upon  the  parties,  and 
could  not  be  rescinded  by  either, 
without  the  consent  of  the  other. 
Clark  v.  Dales.  42 


14.  The  letter  of  acceptance  contained 
this  inquirv:  "  Please  say  to  us  how 
we  shall  re'mitl"  Held  that  this  in- 
quiry did  not  qualify  the  acceptance 
of  the  defendant's  proposition 


ib 


4.  Parol  extension. 


15.  The  time  for  pcrfomiing  a  written 
contract  under  seal,  may  be  enlarged 
by  parol.     Stone  v.  Sprague,       509 

16.  It  is  competent  for  parties,  by  a 
subsequent  parol  contract,  to  extend 


676 


INDEX. 


the  time  for  t.he  performance  of  the 
original  agreement ;  and  tliis  with- 
out any  new  consideration.  Clark 
V.  Dales,  42 

5.  Delivery  and  acceptance. 

17.  Delivery  is  essential  to  the  validity 
of  a  deed  or  contract ;  and  it  is  al- 
ways competent  to  show,  by  parol, 
that  there  has  not  been  i  delivery. 
Stephens  v.  Buffalo  and  New  York 
City  Rail  Road  Co.  332 

18.  There  can  be  no  delivery  without 
an  acceptance  by  the  party  who  is  to 
receive  the  deed.  ib 

10.  Where,  in  an  action  of  ejectment, 
the  defendants  claim  the  right  to  the 
possession,  under  a  written  contract  for 
the  sale  and  conveyance  of  the  premis- 
es to  them  by  the  plaintiff,  evidence  is 
admissible  in  behalf  of  the  plaintiff, 
to  show  that  the  alleged  contract  was 
never  delivered,  but  was  placed  in 
the  hands  of  ihe  defendants'  agent, 
rot  as  such  agent,  and  not  as  a  con- 
tract, but  to  be  presented  by  him,  in 
behalf  of  the  plaintiff,  to  the  defend- 
•  ants,  as  a  proposition  for  their  ac- 
ceptance or  refusal,  and  to  be  void  as 
a  proposition,  unless  the  defendants 
should  give  notice  to  the  plaintiff  of 
its  acceptance,  within  a  specified 
time;  that  such  notice  was  not  giv- 
en ;  and  that  afterwards,  and  l>efore 
any  notice  of  accei)tance,  by  the  de- 
fendants, the  i)laintiff  gave  notice  to 
the  agent  of  the  defeiiflants,  as  such 
agent,  that  he  withdrew  the  offer,    ib 

20.  Under  such  circumstances,  the  p.a- 
j/er  will  not  bind  the  plaintiti,  as  a 
contract,  until  liie  defendants  have 
accepted  it ;  and  until  acceptance, 
the  plaintiff  may  withdraw  or  rescind 
it.  ib 

21.  And  a  declaration  by  the  plaintiff, 
to  the  defendants,  that  he  will  not  be 
bound  by  the  proposition,  made  at 
any  tini(!  before  acceptance,  will  ter- 
minate it.  ih 

22  Whore  the  execution  of  a  paper  by 
one  iiarty  is  completed  by  a  delivery 
thereof  to  the  agent  of  the  other  par- 
ty, as  a  contract,  parol  evidence  of 
conditions  qualifying  the  delivery  is 
not  admissible ;  and  the  party  sign- 
ing the  i)aper  will  be  bound,  although 
it  is  not  signed  by  the  other  party,  ib 


ALE. 

See  ExcisK   Law. 

AMENDMENT. 

1.  Where  one  party  agrees  to  sell  ani 
deliver  goods  at  a  particular  piaco, 
and  the  other  agrees  to  receive  and 
pay  for  them,  an  averment  by  the 
purchaser,  of  a  readiness  and  willing- 
ness to  receive  and  pay  at  that  place, 
in  case  he  sues,  fur  a  non-delivery,  is 
indispen.sably  necessary  in  tlie  com- 
plaint. But  the  omission  to  make  it 
is  a  defect  which  is  cured  by  a  ver- 
dict; and  an  araendme^it  o?  the  iiova- 
l)laint  is  admissible  and  appropriate, 
under  such  circumstances,  for  the  pur- 
pose of  securing  certainty  and  harmo- 
ny in  the  record  ;  and  is  .sanctiorie<l  bv 
§  173  of  the  coile.  Clark  v.  Dales.  42 

2.  The  amendment  may  be  ordered  at  a 
general  term,  and  without  formal 
notice  of  motion  for  that  jiurpose, 
when  the  object  of  the  amendment  is 
only  to  conform  the  comj)laint  to  the 
facts  found,  and  when  the  record 
furnishes  the  only  grounds  for  and 
against  the  same.  ib 

3.  Where  a  complaint  and  answer  are 
both  very  general  in  point  of  form,  but 
neither  party  demurs,  and  botli  have 
gone  to  trial  with  a  full  undeistand- 
ing  of  their  rights,  and  neither  i)arty 
has  been  taken  by  surprise  by  the 
pleading  of  his  adversary,  and  a  full 
and  fair  investisation  has  been  had, 
upon  the  merits,  such  an  amendment 
v.ill  bo  allowed  as  may  L>e  riecessaiy 
to  conform  the  complaint  to  the  facta 
proved,  and  as  will  do  substantial  jus- 
tice to  both  parties.  Hunter  v.  The 
Hudson  Rlcer  Iron  and  Machine 
Co.  493 


APPEAL. 

1.  Where  an  objection  to  the  competen- 
cy of  a  witness  examined  befoie  a 
surrorrate,  Ls  not  rai-^ed  there,  it  will 
be  deemed  to  have  been  waived,  and 
will  be  of  no  avail  on  appeal.  Mc- 
Donough  v.  Loughlin,  23d 

2.  An  omission  to  challenge  a  juror  ir 
a  waiver  of  all  objections  to  him  ; 
and  this  whether  there  be  an  appear 


INDEf. 


677 


Knee,  or  not.  Consequently  a  party 
to  a  suit  before  a  justice,  who  fails  to 
appear,  on  the  trial,  cannot  raise 
the  objection,  on  appeal  from  the 
judgment,  that  some  of  the  jurors 
who  tried  the  cause  were  not  compe- 
tent, as  such,  for  want  of  the  Tequi- 
site  })roperty  qualification.  Clark  v. 
Van  Vrancken,  278 

3.  Where  an  objection  to  testimony  is 
taken  on  the  trial,  on  a  specific 
ground,  and  in  such  a  manner  as  to 
induce  the  opjiosite  partj'  to  believe 
that  such  is  the  sole  ground,  the  part}' 
objfctincr  will  not  be  allowed,  on  ap- 
peal, to  place  his  objection  upon  a 
different  ground,  and  one  which,  if  it 
had  bi-en  urged  at  the  trial,  might 
have  been  ol»viated.  Briggs  v. 
Smith,  409 

i.  Objections  may  1)e  urged,  on  an  argu- 
ment at  a  general  term,  which  were 
not  raised  on  the  trial,  if  they  are 
such  as  could  not  have  been  obviated 
at  the  trial.     Pepper  v.  Haighi,  429 


ARBITRATION  AND  AWARD. 

1.  Agreement  to  submit;  submission. 

1.  An  agreement  for  the  submission  of 
matters  in  difference  to  arbitration, 
followed  by  the  arbitrator  entering 
upon  their  duties — the  arbitration 
being  still  pending  and  undetermined 
— constitutes  no  defense  or  legal  obsta- 
cle, in  abatement  or  in  bar.  to  an  ac- 
tion for  the  same  matters,  commenced 
after  the  making  of  the  agreement. 
Smith  V.  Compton,  262 

2.  Such  an  agreement  is  a  mere  author- 
ity, revocable  by  either  party,  at  any 
time  before  the  case  is  finally  submit- 
ted to  the  arbitrators  for  decision, 
subject  only  to  liability  for  damages,  ih 

8.  Where  a  submission  was  in  writing, 
under  seal,  to  hear  the  evidence  in 
reference  to  a  certain  lease,  "  to  the 
end  that  all  mattei-s  in  controversy  in 
that  behalf,  between  the  parties, 
should  be  finally  concluded"  Slc., 
and  a  subsequent  agreement,  between 
the  parties  recited  that  they  had 
agi'eed  "  to  submit  their  matters  in 
contro\ersy"  to  arbitration  ;  Held  that 
it  was  the  intention  of  the  parties  that 
the  arbitratore  should  pass  upon  all 
matters   iu   refereiice   to   the  lease ; 


whether  all  the  rent  had  become  due 
or  not ;  .so  as  to  tmd  all  controversy  be- 
tween them  which  had  ari.sen,  or 
might  arise,  out  of  that  instrument; 
and  that  consequently  the  award  was 
not  void  although  it  embraced  the 
rent  not  then  due,  and  damages  sub- 
sequently to  accrue,  under  the  lease. 
French  v.  New,  482 

4.  Where  a  submission  purported  to  bo 
made  pursuant  to  the  piovisions  of 
the  statute  for  detemiinins  controver- 
sies by  arbitration,  but  it  containefl 
no  clause  agreeing  that  a  judgment 
should  be  entered  in  a  summarj-  man- 
ner upon  the  award  to  l)e  made ; 
Held  that  this  was  not  a  submission 
under  the  statute.   (1/?.  S.  541.)     i'o 

2.  Parol  evidence  as  to  proceedings. 

5.  Mistakes  or  errors  of  arbitrators,  in 
respect  to  the  matters  submitted  to 
them,  cannot  be  inquired  into,  or  cor- 
rected, in  a  court  of  law.  Parol  evi- 
dence cannot  be  received,  therefore, 
to  show  such  mistakes  or  errors. 
Briggs  v.  Smith,  409 

6.  But  parol  evidence  to  show  that  the 
arbitrators  exceeded  their  powers  is 
admissible  in  a  court  of  law;  and  if 
that  fact  is  proved,  it  will  render  the 
award  void.  if> 

7.  Thus  where  a  submission  was  gene- 
ral, of  all  matters  whatever  hetiocen 
the  parties;  Held  that  evidence  to 
show  that  the  arbitrators  took  into 
consideration' matters  not  submitted 
to  them,  viz:  matters  between  one  of 
the  parties  and  a  third  person,  was 
admissible.  i/> 

8.  Where,  in  an  action  upon  an  award 
the  defendant  offered  to  prove  hj 
one  of  the  arbitrators,  '•  that  the  arbi- 
trators took  into  consideration  mat- 
ters not  submitted  to  them ;  also  thai 
they  included  in  the  award  about  15 
perch  of  stone  a.s  the  property  of  the 
defendant,  and  did  not  include  it  in 
the  written  award;"  Held  that  this 
was  not  to  be  construed  as  one  entire 
offer  and  therefore  inadmissible  as 
embracing  a  matter  as  to  which  no 
evidence  could  be  received,  viz :  to 
show  the  mistake ;  but  that  the  proj)- 
osition  was  to  be  treated  as  consti- 
tuting two  distinct  offers,  one  of 
which  was  proper.  «* 

9.  Where  there  is  not  enough  on  the 
face  of  an  award  to  show  that  the  arbi 


678 

tratois  did  not  go  beyond  the  submis- 
sion, parpi  evid(!nce  may  be  resorted 
to.  And  tlie  arbitrators,  or  eitlier  of 
tiiem ,  are  competent  witnesses  to  prove 
th;it  inattei-s  were  included  in  tlie 
award  whicli  were  not  contained  in 
the  submission ;  in  a  case  where  no 
bad  faith  on  the  part  of  the  arbitrators 
is  alleged.  ■  ilj 

10.  Wlicre  the  submission  was  to  hear 
the  evidence  in  reference  to  a  certain 
lease,  "  to  the  end  that  all  mat- 
ters in  controvers}''  in  that  behalf,  be- 
tween the  parties,  should  be  finally 
concluded"  &c.,  it  was  hel/  that  pa- 
rol evidence  that  the  rent  yet  to  be- 
come due,  and  other  claims,  were 
taken  into  consideration  by  the  arbi- 
trators, was  i)roper  for  the  purpose  of 
showing  wiiether  the  arbitrators  took 
into  consideration  matters  beyond 
the  submission,  or  not.  French  v. 
New,  481 

3.   Validiiy  of  award. 

11.  Where  that  portion  of  an  award 
which  is  void  for  not  being  within  the 
submission,  is  so  connected  with  the 
rest  of  the  award  that  it  is  impossible 
to  distinguish  between  the  valid  and 
the  invalid  portions,  the  whole  award 
is  void.     Briggs  v.  Smith,  409 

12.  Parties,  after  having  by  their  bonds 
of  submission  to  arbitration,  required 
the  aw-ard  to  be  t?i  u  ■i<'7ig,  and  sub- 
scribe:] by  the  arbitrators,  maj'  waive 
that  lequirehient,  by  parol,  and  re- 
ceive a  verbal  award,  which  will  be 
binding   on  both.     French   v.  New, 

481 

13.  Thus  where  a  submission  required 
the  award  to  be  made  in  writing  un- 
der the  hands  of  the  arbitrators,  sub- 
scribed by  them  or  any  two  of  them, 
and  attested  by  a  subscribing  witness, 
but  before  the  arbitrators  made  any 
award,  the  parties  said  to  them  they 
had  substituted  other  writings  which 
they  had  drawn  up  and  executed, 
under  seal,  in  place  of  a  formal  award 
in  writing,  and  that  all  they,  the  par- 
ties, wanted  to  know,  was  how  much 
was  awarded,  and  they  could  fix  the 
amount,  in  the  instrument,  as  they 
had  agreed;  and  that  they  did  not 
want  the  award  in  writing,  but  wish- 
ed the  arbitratois  to  award  verbally ; 
IT  WAS  HKLD  that  the  parties  had 
waived  that  i)art  of  the  condition  of 
the  submission  bond  which  required 
the  award  to  be  in  writing.  ib 


INDEX. 


14.  Such  an  agreement  foi  a  parol  award 
operates  as  a  new  sul  mi.ssion ;  and 
the  parties  are  estopped  from  saying 
that  the  parol  award,  made  in  pursu- 
ance of  their  directions,  is  void.        ib 

15.  Th*e  principle  that  he  who  pre- 
vents a  thing  being  done,  shall  not 
avail  himself  of  the  non-performance 
he  has  occasioned,  applies  to  such  a 
case.  ih 

16.  Where  there  is  a  submission,  by 
writing,  under  seal,  of  all  matters  re- 
lating to  a  lease,  to  arbitration,  and  a 
subsequently  executed  parol  agree- 
ment between  the  parties,  consenting 
that  the  aibitrators  may  make  a  ver- 
bal award,  an  award  by  parol  will 
discharge  the  lease.  ib 

17  Proof  that,  previous  to  a  submission 
of  matters  respecting  a  lease,  the  rent 
due  thereon  &c. ,  one  of  the  arbitrators 
counseled  with  the  defendant,  and 
told  him  his  rent  was  too  high,  will 
not  show  such  corruption,  partiality 
or  2ross  misbehavior  as  would  inval- 
idate the  award  at  law;  and  is  there- 
fore inadmissible.  ih 

18.  Such  evidence  cannot  be  given 
bj'  the  arbitrator  himself;  on  the 
ground  that  it  would  go  to  impeach 
his  award.  ii 


ASSESSMENT. 
See  Mutual  Life  Ins.  Companies. 

ASSIGNMENT. 

See  Debtor  and  Cheditor. 

ASSUMPSIT. 

1.  If  a  j)erson,  without  compulsion  of 
law,  or  legal  obligation,  j)ays  tho 
debt  of  another  without  a  previous 
request,  the  debtor  is  not  lialile  for 
the  amount.     Ingraham,  v.  Gilbert, 

151 

2.  A  pecuniary  benefit,  voluntarily 
conferred  by  the  plaintiff  and  adopt- 
ed by  tlie  defendant,  is  not  such  a 
consideration  as  will  sujiport  an  ac- 
tion of  assumpsit,  on  a  subsequent 
implied  promise.  ib 


INDEX. 


67. 


ATTORNEY. 


I  In  an  action  for  a  partition,  after  the 
plainlitt's  attorney  bad  become  en- 
titled to  certain  fees  for  iiis  services, 
and  to  over  $100  for  disbursements, 
the  plaiiititls  assigned  their  shares 
iu  the  propertj-  to  C.  and  wife,  and 
one  of  the  plaintiffs  assigned  also 
all  costs  and  allowances  that  he 
might  have,  by  the  suit.  The  as- 
signees claimed  the  right  to  substi- 
tute a  new  attorney,  and  continue 
the  suit,  without  paying  the  former 
attorney  any  thing.  Tlie  court  refus- 
ed to  allow  the  substitution  until  the 
disbursements  were  paid.  Subse- 
quently, the  pro[)erty  being  sold, 
and  the  plaintiff's  costs  brought 
into  court,  it  was  held  that  the  as- 
signment did  not  transfer  any  costs 
or  allowances  to  whicli  the  attorney 
was  entitled,  but  only  tliose  belong- 
ing to  the  assignor.  Creighton  v. 
Jngersoll,  541 

2.  It  was  further  held  that  when  C. 
and  wife  took  an  assignment  of  the 
action  as  it  stood,  and  the  benefit 
of  the  progress  then  made  in  it, 
they  took  it  with  the  burthens  then 
incident  to  it,  one  of  which  was  the 
liability  to  have  the  costs  then  in- 
curred deducted  from  the  recovery 
by  them.  The  amount  of  costs  due 
to  the  former  attorney,  as  adjusted 
previous  to  the  substitution,  was 
-therefore  directed  to  be  |)uid  to  him, 
before  paying  over  the  fund  in  couit 
to  the  plaintifTa  ih 


B 

BAIL. 

Sc«j  PitoHiBiTORY  LrauoR  Law.  8,  9, 
10,  11,  12. 

BILL  OF  EXCEPTIONS. 
See  Criminal  Law. 

BOARD  OF  SUPERVISORS. 

I.  Even  in  cases  where  no  discretion 
is  vested  in  a  board  of  supervisors, 
in  relation  to  an  account  i)resented 
to  them,  and  a  dear  lejfal  duty 
rests  upon  the  r,  to  cause  the  whole 


amount  of  the  account  to  be  levied, 
collected  and  paid,  as  a  county 
charge,  which  they  refuse  to  |)erforiu, 
an  action  will  not  lie,  against  the  su- 
pervisors. Tlie  only  remedy  of  tho 
creditor  is  b}'  an  application  to  the 
court  for  a  manlamus  to  compel 
them  to  ()erform  that  duty.  Boijce 
V.  The  Board  of  Supervisors  of 
Cayuga  county,  294 

2.  To  warrant  a  suit  against  a  board 
of  supervisors,  as  representing  tho 
county,  there  must  be  some  duty 
of  the  county,  and  the  case  must  be 
such  that  an  action,  founded  upon 
that  duty,  is  the  appropriate  rem- 
edy, ib 

3.  Where  the  duty  relied  upon  is-  a 
duty,  not  of  the  county,  but  of  tho 
board  of  supervisors,  no  action  will 
lie.  ib 

See  Mutual  Life  Ins.  Companies. 


c 


CANAL  COMMISSIONERS. 

1.  The  question,  as  to  the  liability  of  a 
canal  commissioner,  for  a  neglect  of 
duty,  depends  in  each  case,  upon  the 
character  of  the  duty  which  the  stat- 
ute has  imposed  U[)on  him.  If  it  is 
imperative,  and  specific,  the  commis- 
sioner is  responsible  to  anj''  person 
who  has  sustained  an  injury  in  conse- 
quence of  his  neglect  of  dutv.  Grif- 
fith V.  Follett,  '  620 

2.  But  if  the  duty  is  to  1)6  discharged 
according  to  iht^  discretion  and  judg- 
ment of  the  commissioner,  he  cannot 
be  held  ie.s,i<>:isili!e  to  a  party  who 
has  sustained  an  injury  either  by  the 
manner  in  which  he  discharges  it, 
or  by  a  neglect  to  do  any  particulai 
act  falling  within  the  general  scopu 
of  his  duties.  ib 

3.  A  canal  commissioner  is  to  examine 
the  works  committed  to  his  charge, 
and  from  such  e.xuminaticm  he  is  to 
ascertain  and  determine,  that  is.  de- 
cide as  to  the  necessity  for  any  par- 
ticular repair,  and  act  accordingly,  ih 

4.  It  is  not  his  duty  to  make  repairs 
when,  or  as,  ho  may  be  requested  or 
advised  by  others.     But   as  to  tho 


680 


INDEX. 


necessity  of  such  repairs,  their  nature 
and  extent,  and  the  time  when  thcj' 
are  to  be  made,  lie  is  to  be  guided 
by  his  own  judgment.  And  his  judg- 
ment is  conclusive,  upon  tlie  ques- 
tion, and  cannot  be  called  in  question 
collaterally,  in  an  action  brought  by 
a  jiarty  who  has  sustained  an  injury 
by  the  commissioner's  neglect  to  act, 
in  any  particular  case.  >  ib 

5.  There  is,  however,  a  class  of  cases 
in  relation  to  which  the  duty  of  the 
commissioner  is,  in  its  nature,  abso- 
lute and  certain.  Thus,  when  the 
navigation  of  the  canal  is  interrupt- 
ed or  impeded  by  any  obstruction  of 
the  channel,  or  by  the  destruction  of 
any  bank  or  structure,  the  necessity 
fi»r  immediate  repairs  is  apparent, 
and  the  duty  of  the  commissioner  to 
make  them  is  imperative.  ib 

6.  He  has  no  discretion  to  exercise,  in 
such  a  case,  as  to  the  necessity  of 
repairing,  but  is  bound  to  make  the 
repairs  without  delay  ;  and  for  a  neg- 
lect to  make  them,  after  notice  of  the 
facts  showing  their  necessity,  the 
commissioner  is  liable  to  any  jjarty 
injured  by  the  neglect.  ib 

See  Joinder  of  Claims,  3,  4. 


CHATTEL  MORTGAGE. 

1.  Before  a  chattel  mortgage  can  be 
upheld  as  a  valid  security,  where 
there  has  been  no  actual  and  con- 
tinued change  of  jjossession.  the 
jiarty  asserting  its  validity  must  es- 
tablish, affirniativi'ly,  two  })roposi- 
tions;  first,  that  the  transaction  was 
bona  fide  ;  and,  secondly,  that  there 
was  no  intention  to  defraud  credit- 
ors or  purchasers.     Gi'oat  v.  Rees, 

26 

2.  It  is  not  enough  to  show  that  the 
mortgage  was  given  for  a  good  and 
valid  consideration.  It  is  equally 
necessary  to  prove  the  absence  of 
a  fraudulent  intent.  ib 

8.  But,  where  it  is  admitted  that  the 
mortgage  was  given  for  a  good  and 
valid  consi(l(?ration,  it  is  proper  to 
submit  the  question  to  the  jury 
whether  it  was  not  also  executed 
without  any  intent  to  hinder  or  de- 
lay creditors.  ib 

i.  And  if  there  is  no  evidence  that 
the  mortgagor  was  indebted  to  any 


other  person  than  the  mortgagee, 
and  there  is  nothing  in  the  case  to 
show  that  the  mortgage  was  exe- 
cuted for  any  other  ])nrpose  than  to 
secure  a  'bona  fide  debt,  tlie  jury 
will  be  justified  in  finding  in  favor 
of  the  validity  of  the  mortgage,    ih 

5.  A  chattel  mortgage  can  only  ope- 
rate upon  property  in  actual  exist- 
ence at  the  time  of  its  execution. 
It  cannot  be  given  on  the  future 
products  of  land.  Milliman  v. 
Neher,  •  37 

6.  Thus  where  a  lease  was  executed, 
in  March,  1852,  between  the  plain- 
tiff and  M.,  of  a  farm,  for  one  year 
from  the  1st  of  Ai)ril  then  next,  at  a 
specified  rent,  and  it  was  stipulated 
that  the  plaintiff  should  have  a 
"  lien  u|)on  the  cro])S  as  security  for 
said  rent,"  and  that  M.  should 
"  market  the  same  ;"  Held  that  a 
person  who  had  purchased  from  M. 
corn,  raised  upon  the  farm,  with' 
knowledge  of  the  plaintiff's  claim 
to  a  lien  thereon,  could  bold  the 
same,  as  against  the  plaintiff.         ib 

7.  A  chattel  mortgage  was  executed  by 
P.  in  the  usual  form,  to  K.,  transfer- 
ring to  the  mortgasei!  the  legal  title 
to  the  property.  By  the  first  clause 
of  the  condition  this  title  was  made 
defeasible  upon  the  payment  of  the 
mortgage  debt  according  to  the  terms 
of  the  condition.  By  another  clause 
it  was  provided  that  if  default  should 
be  made  in  such  7)ayment,  or  if  K. 
should  .at  any  time  deem  himself  in 
danger  of  losing  his  debt  I»y  delaying 
the  collection  thereof  until  it  became 
due,  he  might  take  possession  of  the 
property  at  any  time,  before  or  after 
the  time  limited  for  the  payment  of 
such  debt,  and  sell  the  same,  or  so 
much  thereof  as  should  be  necessary 
to  satisfy  the  debt,  &c.  Held  that 
this  latter  clause  did  not,  by  implica- 
iioii.  give  to  the  mortgagor  the  right 
to  retain  the  possession  of  the  prop- 
erty until  the  happening  of  the  con- 
tingency ;  but  that  the  power  given 
to  the  mortgagee,  by  that  stipulation," 
was  intended  as  a  cumulative  remedy, 
merely,  and  did  not  qualify  hisi'ight, 
as  the  legal  owner,  to  the  possession 
of  the  property  at  all  times,  before 
the  performance  of  the  condition 
which  was  to  defeat  his  title  Rich 
v.  MiUi,  61(1 


INDEX. 


681 


8.  It  was  accordingly  held,  further, 
that  an  assignee  of  the  mortgage 
had  a  right  to  take  possession  of 
the  pro{)erty  and  to  retain  it,  as 
against  tiie  nioi^tgagor,  ajid  all  claim- 
ing under  him,  before  the  mortgage 
debt  became  due  and  payable,      ih 


COMMON  SCHOOLS. 

1.  The  renewal  of  a  warrant  issued 
for  the  collection  of  a  school  tax,  is 
equivalent  to  issuing  a  new  warrant. 
And  if  the  renewal  is  signed  by 
only  two  of  the  trustees  of  the 
school  district,  the  third  refusing  to 
sign  it,  the  latter  is  not  liable  for 
any  act  done  under  the  warrant. 
Thomas  v.  Clapp,  1G5 

2.  If  a  warrant  is  fair  on  its  face,  it 
atfords  a  complete  protection  to  the 
cf)llectoi- ;  j»nd  this  even  though  he 
lias  knowledge  of  facts  rendering 
the  i)rocess  void.  The  warrant  is 
sufficient  if  signed- by  two  of  the 
trustees.  ib 

3.  A  warrant  is  not  rendered  void  by 
a  direction  to  the  collector  to  collect 
the  amount  of  the  tax,  together 
with  five  per  cent  for  his  fees  ;  al- 
though tiie  act  of  1849  gives  the 
collector  only  one  per  cent  on  all 
sums  paid  in  within  two  weeks,     ih 

4.  The  statute  does  not  prescribe  a 
new  form  for  the  warrant,  but  limits 
the  action  of  the  collector  under  it.  ib 

5.  Where  a  tax  is  levied  and  assessed 
by  all  the  trustees,  and  in  perform- 
ing that  duty  they  act  together  and 
all  concur,  it  is  unimportant  wheth- 
er all  are  present,  or  not,  when  the 
warrant  is  signed  ;  the  signing  of 
the  warrant  being  but  a  ministerial 
duty.  ib 

<i.  The  statute  requiring  the  tax  to  be 
assessed  and  the  tax  list  therefor  to 
be  made  out  by  the  trustees  and  a 
warrant  attached  thereto,  within 
thirty  days  after  the  district  meet- 
ing at  which  the  tax  was  voted,  is 
merely  directory,  as  to  time.  It  be- 
ing for  the  benefit  of  tiie  public, 
those  acts  may  be  done  after  the 
time  specified  in  the  statute  has 
fclapsed.  ti 


CONDITION. 


1.  No  precise  technical  words  are  re 
quired,  to  make  a  condition  preceden* 
or  subsequent.  The  construction 
must  always  be  founded  on  the  inten- 
tion of  the  parties.  Underhill  v. 
The  Saratoga  and  Washington 
Rail  Road  Co.  455 

2.  If  the  act  or  condition  required  does 
not  necessarily  precede  the  vestinif 
of  the  estate,  but  may  accompany  or 
follow  it,  and  if  the  act  may  be  as 
well  done  after  as  before  the  vesting 
of  the  estate,  or  if  from  the  nature  of 
tlie  act  to  be  perfornic<l  and  the  time 
required  for  its  i)erformance,  it  is  ev- 
idently the  intention  of  the  parties 
that  the  estate  shall  vest,  and  the 
grantee  perform  the  act,  alter  taking 
possession,  then  the  condition  is  sub- 
sequent, ib 

3.  Where  a  grant  was  %ipon  the  covdi- 
iion  that  the  grantees  should  build 
and  maintain  a  water  tight  enbank- 
ment  or  dam  o\er  a  ceitnin  brook 
crossing  tlie  land  conveye<l,  as  part 
of  their  line  of  road,  and  thnt  the 
said  embaiikiuent  or  dam,  with  the 
flood-gates  and  sluice-ways  therein, 
might  be  used  for  hydraulic  purposes, 
by  the  grantors,  their  heirs  and  as- 
signs; and  it  was  covenanted  that 
the  grantees  should  not  be  liable  for 
any  damages  which  the  arantors 
should  sustain  in  case  of  a  break  in 
the  dam  or  an  overflow  thereof,  un- 
less the  same  should  hajipen  through 
the  gross  ne<ilisence  or  willful  mis- 
feasance of  the  arantees,  but  that 
the  grantees  should  repair  all  dam- 
ages which  the  dam  or  embankment 
should  at  any  time  sustain,  fortlivvith  ; 
it  was  held  that  the  condition  was 
subsequent,  and  that  the  eliect  of  the 
deed  was  to  vest  the  fee  simple  of  the 
estate  in  the  grant<  es,  subject  to  be 
defeated  by  a  nculect  or  refusal  to 
perform  the  condition.  ib 

4.  Held  also,  that  the  eflect  of  an  omis- 
sion to  perform  the  condition,  by  the 
grantees,  was  to  give  the  grantors  or 
in  case  of  their  death,  tlicir  heirs,  the 
right  of  entry :  but  that  no  action 
could  be  maintained  by  an  assignee 
of  the  grantors,  to  recover  the  land  ; 
whether  the  breach  wius  before  or  af- 
ter the  assignment.  to 

5.  Held  fui-iher,  that  by  a  general  as- 
signment, made  by  the  grantors,  to 


Vol.  XX. 


86 


682 


INDEX. 


a  third  person,  of  all  their  property, 
rights,  claims  and  demands,  the  con- 
dition was  gone,  and  the  grantees 
obtained  an  absolute  estate,  and  were 
discharged  from  the  condition,  and 
all  claim  for  damages  for  a  breach 
of  it.  ib 

6.  And  held,  that  the  condition  could 
not  be  construed  to  be  a  covenant, 
so  as  to  enable  the  assignee  of  the 
grantors  to  maintain  an  action  to  re- 
cover damages  for  a  breach  thereof,  ib 

7.  Nor  can  the  a.ssignee,  in  such  a  case, 
maintain  an  action  for  damages,  on 
the  ground  of  an  implied  covenant. 

ib 

8.  A  condition  in  a  deed,  when  explicit 
words  are  used,  creating  such  condi- 
tion, will  not  be  construed  into  a 
covenant,  e.\cept  to  avoid  a  forfeit- 
ure, ib 


CONSIGNOR  AND  CONSIGNEE. 

1.  Where  g-oods  are  consigned  to  joint 
factors  the  consignees  are  in  the  na- 
ture of  co-obligors,  and  each  is  liable 
for  the  whole.     Briggs  v.  Vose,  477 

2  And  although,  upon  a  dissolution  of 
the  partiiLMship,  one  retires,  and  the 
other  sells  the  goods  and  receives 
the  avails,  yet  an  action  lies  against 
both  for  not  fnllilling  their  duty  in 
selling  and  accounting;  and  they 
may  both  be  held  liable  for  not  ac- 
counting, ib 


CONSTITUTIONAL  LAW. 

1  The  act  of  Ai)ril  8, 1851,  relating  to 
life  insurance  companies,  was  not  a 
violation  of  theartich^  of  the  consti- 
tution of  the  United  States  by  whicii 
tlu!  citizens  of  cacii  state  are  enti- 
tled to  all  the  ])rivileges  and  immu- 
nities of  citizi'ns  in  the  several 
.states.     The  People  v.  Imlay,       68 

2.  A.r\  incorporated  company  is  not  a 
citizen,  wiliiin  the  meaning  of  that 
section.     {Const,  art.  1,  sec.  1.)     ib 

5  The  charter  of  the  United  States 
Trust  Company  of  New  York  is  not 
anconstitutional.  'I'he  United  States 
Trust  Company  v.  Brady,         11-9 


The  constitution  gives  the  legisla- 
ture the  power,  in  its  discretion,  to 
create  cor[)orations  other  than 
banks,  by  special  charter.  And  when 
that  discretion  has  been  exercised, 
the  courts  cannot  review  the  action 
of  the  legislature.  ib 

See  Prohibitory  LiauoR  Law. 


CORPORATION. 

1.  A  plaintiff  admits  the  corporate  ex- 
istence of  a  corporation,  by  suing  it 
by  its  corporate  name.  And  this 
admission  will  not  be  overcome  by 
his  alleging,  in  the  complaint,  facta 
which,  if  true,  would  go  to  show 
that  the  defendant  had  failed  to 
comply  with  such  tei-nis  as  by  the 
charter  were  conditions  precedent 
to  its  organization  as  a  corporate 
body.  The  People,  ex  rel.  Marshall, 
v.  The  Ravenswood,  !^'C.  Turnpike 
and  Bridge  Co.  518 

2.  In  such  a  case*the  latter  allegations 
in  the  complaint  may  be  disregard- 
ed, as  being  irreh-vant  and  imperti- 
nent; inasmuch  as  a  plaintiff  cannot 
be  permitted  to  treat  the  defendant 
as  a  corporation  in  fact,  for  the  jmr- 
pose  of  suing  it,  and  then  insist  that 
it  never  performed  those  acts,  with- 
out {)erfbrming  which  it  could  not 
have  acquired  existence.  ib 

3.  Where  the  comjdaint,  in  an  action 
against  a  corporation,  alleged  thai 
the  defendant  h:i(l  violated  its  char 
ter,  and  also  that  it  liad  omitted  to 
do  certain  things  claimed  to  be  es- 
sential to  give  it  a  legal,  corporate 
existence,  and  prayed  that  the  de- 
fendant might  be  excluded  from  the 
franchises  eluinied  by  it,  and  that 
the  corporation  might  be  dissolved; 
Field,  on  genei-al  demurrer  to  the 
whole  complaint,  that  the  complaint, 
as  a  whole,  was  good  ;  it  containing 
but  one  subject  matter,  viz  :  tht» 
right  of  the  defendant  to  continue  to 
exercise  certain  franchises.  Clerkk, 
J.  dissented.  ib 


COSTS. 

1.  A  claim  of  possession  is  not  a  clairi> 
of  title  to  land.  In  its  mor.t  conipre. 
hensive  sense,    the   term  title  em 


IKDEX 


jraces  the  possession,  but  not  in  the 
sense  in  wliich  it  is  used  in  the  sec- 
tion of  the  code  giving  costs  to  the 
plaintiff  in  actions  for  the  recovery 
of  real  property,  or  where  a  claim 
of  title  to  real  pro])erty  arises  on  the 
pleadings,  or  comes  in  question.  As 
there  used  it  is  nothing  less  than  an 
assertion  of  a  right  of  possession. 
JRathhone  v.  McConnell,  311 

2.  Where  the  object  of  an  action  was 
to  recover  dam'ages,  sustained  in 
consequence  of  an  act  done  by  the 
defendants  above  the  plaintiff's 
land,  by  which  the  water  of  a  wa- 
ter-course, passing  over  such  land, 
was  diverted  and  the  plaintiff  de- 
prived of  the  use  of  it,  the  defend- 
ants alleged  as  a  defense,  that  the 
act  was  done  with  the  leave,  license 
and  permission  of  the  jilaintiff,  it 
teas  held,  that  the  answer  was  to  be 
viewed  as  setting  up  a  mere  license, 
and  that  under  this  issue  the  title 
to  the  land  diil  m>t  come  in  ques- 
tion, so  as  to  entitle  the  i)laintiff  to 
costs  under  the  304th  section  of  the 
code.  ib 

See  Attorney. 


COUNTER-CLAIM. 

In  an  action  against  several  defend- 
ants who  are  jointly  and  severally 
liable,  either  of  them  may  set  off 
promissory  notes  executed  by  the 
plaintiff,  or  mav  avail  himself  there- 
of by  way  of  counter-claim.  Briggs 
V.  Vose,  477 

COURTS  OF   SPECIAL   SESSIONS. 

A  court  of  special  sessions  is  one  of 
limited  jurisdictitm,  deriving  all  its 
power  from  the  statute.  It  can  on- 
ly acquire  jurisdiction  over  the  per- 
son of  the  accused  ujjon  his  request 
to  be  tried  before  it,  or  his  omi.ssion, 
for  24  hours  after  being  required  to 
do  so,  to  give  bail  for  his  appearance 
according  to  law.  TAe  People  v. 
Berberrich,  224 

See  Prohibitory  LiauoR  L\w,  8  to  15. 


COVENANT. 

1.  Where  the  condition  of  a  raortgase, 
given  for  the  i)urchase  money,  stated 
that  the  title  to  a  portion  of  the  mort- 


683 

gaoed  premises  was  in  di.s]>nte,  the 
land  being  claimed  by  a  third  person, 
and  that  the  mortgagee  liad  acreefl  to 
give  a  good  title  to  such  disputed  i»art, 
and  stipulated  that  if  he  failed  to  do 
so,  before  or  at  the  time  the  fli-st  |)aj'- 
ment  became  due  on  the  mortgage, 
the  mortgagor  should  have  the  right 
to  keep  back  from  the  mortgage  mo- 
neys whatever  sums  he  should  have  to 
pay  to  obtain  a  good  title  and  posses- 
sion of  the  di.>-])uted  part  of  the  prem- 
ises ;  Held  that  the  covenant  to  give 
a  good  title  was  not  a  condition  pre- 
cedent to  the  payment  of  the  mort- 
gage.    Pepper  v.  Haight,  429 

When  mutual  covenants  go  to  the 
whole  consideration  on  both  sides, 
they  are  mutual  cfinditions,  the  one 
precedent  to  the  other ;  but  when  the 
covenants  go  to  only  a  part  of  the 
consideration,  then  a  remedy  lies  on 
the  covenant,  to  recover  damages  for 
a  breach  of  it,  but  it  is  not  a  condition 
precedent.  ib 

.  Where  a  plaintiff,  in  his  complaint 
and  on  the  trial,  claims  to  recover 
land  by  way  of  forfeiture,  on  the 
ground  of  a  failrrc  to  perform  a  con- 
dition on  which,  it  was  granted,  he 
will  be  considered!  as  waiving  any 
claim  for  damage?  fo-  breach  of  a 
corenant  contained  in  the  grant.  He 
cannot  be  allowed  to  pur.^ne  both 
remedies  at  the  same  time,  and  in 
the  same  action.  Underhill  v.  T%e 
Saratoga  and  Waskingt&H  Rail 
Road  Co.  465 


CREDITOR'S  SUIT. 

1.  An  action  will  lie,  in  aid  of  a  suit 
at  law,  to  reach  property  and  effects 
in  the  hands  of  jjartits  who,  it  is 
alleged,  have  fraudulently  received 
the  same  from  the  judgment  debt- 
ors, and  unjustly  assert  a  claim 
thereto,  against  the  plaintiff's  judg- 
ment and  execution.  Hammond  v. 
The  Hudson  River  Iron  and  Ma- 
chine Co.,  378 

2.  The  remedy,  where  a  creditor's^bill 
was  proper  j)revious  to  the  code,  is 
still  preserved,  in  the  form  of  an  ac- 
tion in  the  supreme  court.  ib 

3.  The  judgment  creditor  may  com. 
mence  the  action  for  his  own  bene- 
fit, or  in  behalf  of  himself  and  othcir 


684 


INDEX. 


in  the  same  j«ili.ation  with  himself 
who  may  choose  to  como  in  and 
contribute  to  the  expenses  of  the 
suit.  The  rule  has  not  been  changed 
by  the  code.  ib 

4.  It  is  not  a  subject  of  demurrer  that 
all  th(!  creditors  of  the  judgment 
debtors  are  not  joined  as  plaintiffs. 

ib 

5.  A  judgment  creditor,  who  has  ex- 
hausted his  remedy  at  law,  may  ob- 
tain relief  against  liis  debtor's  proj)- 
erty  in  the  hands  of  a  fraudulent 
assignee,  by  a  direct  action  against 
the  debtor  and  the  assignee,  to  reach 
the  property  thus  held  under  the 
void  assignment.  ib 

6.  Where,  in  an  action  brought  by  a 
judgment  creditor,  against  the  judg- 
ment debtor,  in  aid  of  the  suit  at  law, 
the  complaint  alleges  that  projierty 
and  money  received  by  third  i»er- 
sons,  under  and  V)y  virtue  of  a 
fraudulent  assignment  and  judg- 
ment, was  the  profjerty  of  the  judg- 
ment debtor,  such  thii-d  persons  are 
necessary  parties  to  the  action,     ib 

7.  And  where,  independent  of  any 
claim  such  third  persons  might  set 
u[)  as  owners  of  the  property  sought 
to  be  reached  by  the  action, they 
were  charged  by  clear,  distinct  and 
syyecific  allegations  iti  the  complaint, 

.  with  fraudulent  and  unlawful  acts, 
and  with  efforts  to  hinder  and  de- 
lay the  plaintiffs  in  the  collection  of 
their  debt;  Held,  on  demurrer,  that 
this  was  enough  to  render  them 
proper  parties  to  the  action.  ib 

8  Where  the  subject  of  an  action  is 
the  property  of  a  judgment  debtor, 
and  the  cause  or  ground  of  action  is 
an  impediment  tlirown  in  the  waj^ 
of  collecting  the  plaintiff's  judg- 
ment, and  the  object  of  the  action  is 
toremove  the  impediment— all  other 
results  being  merely  incidental, 
such  as  accounting  for  and  apply- 
ing the  avails  of  the  property  wiiich 
may  be  reached — and  the  defend- 
ants are  chaigcd  jointly  with  the 
commission  of  the  fraudulent  acts, 
and  they  are  alike  concerned  in  the 
JTulgment,  or  thing  to  be  recovered, 
although  their  interests,  as  to  sepa- 
i-ate  parts,  are  distinct,  the  com- 
plaint will  be  held  to  contain  but 
one  cause  of  action  ib  1 


CRIMINAL  LAW. 


The  right  to  a  bill  of  excei)tions,  k 
a  criminal  case,  is  jiiven  by  statute ; 
and  its  oHice  is  to  bring  up  for  re- 
view questions  of  law  made  and  de- 
cided on  the  trial.  Wynhamer  v. 
The  People.  557 

The  statute  which  gives  the  right, 
limits  it  to  exceptions  taken  on  the 
trial  of  the  'main  issue.  It  is  not  ex- 
tended to  such  as  are  taken  on  the 
trial  of  preliminary  or  collateral  ques- 
tions, such  as  motions  to  quash  the 
indictment  for  irregularity,  challen- 
ges to  the  array,  &c.  ib 


CUSTOM. 

In  an  action  upon  a  memorandum 
acknowledging  the  receipt  of  a 
quantity  of  corn  in  store,  "  on 
freight,"  the  defendant  offered  to 
prove  tliat  it  was  the  custom,  at 
the  landing  where  the  corn  was 
delivered,  and  had  been  for  forty 
years,  to  i)ay  i^or  grain  left  on  freight 
after  the  owner  had  ordered  it  to 
be  freighted,  and  not  before;  and 
that  this  custom  was  known  to  the 
plaintiff,  and  that  he  himself  had 
been  in  the  habit,  fur  many  years, 
of  leaving  grain  at  that  {)lace,  to  be 
freighted,  n|)on  the  same  terms. 
Held  that  the  evidence  should  have 
been  received;  and  for  its  rejection 
the  judgment  was  reversed.  Out- 
water  V.  Nelson,  29 

Held  also,  that  the  plaintiff  could 
not  recover,  upon  such  memoran- 
dum, without  i)roving  that  the  de- 
fendant had  shipjjed  the  corn,  or 
that  he  had  been  called  upon  for 
payment  ib 


D 

DAMAGES. 

.  Where  a  contract  is  made  for  the 
sale  and  delivery  of  goods  at  a  fu- 
ture day,  and  the  |)urehaser  is  ready 
and  willing  to  perform  on  his  part, 
on  the  day  and  at  the  place  ap{)oint- 
ed,  but  the  vendor  refuses  to  deliv- 
er the  goods,  the  true  measure  of 
damages,  in  an  action  by  the  pur- 
chaser, is  the  difference  between 
the  contract  price  and  the  value  of 


INDEX. 


685 


the  goods  agreed  to  be  delivered, 
on  that  day,  with  interest.  Clark  v. 
Dales,  42 

2.  Wliere,  in  an  action  against  a  rail 
road  com{)anj'  to  recover  damages 
for  a  personal  injury  occasioned  by 
a  collision,  there  was  evidence  show- 
ing that  the  plaintiff  had  been  inca- 
pacitated by  the  injury  from  labor 
most  of  the  time  for  nearly  two 
years,  and  there  was  also  testimony 
tending  to  prove  that  the  disability 
would  be  i)ermanent,  or  at  least 
long  continued  ;  Held,  that  a  ver- 
dict of  S-1,500  was  not  so  excessive 
as  to  indicate  partiality,  i)rejudice, 
]>assion,  or  any  thing  impro|)er,  in 
the  jury.  Curtiss  v.  The  Rochester 
and  Syracuse  Rail  Road  Co.      283 

See  Agreeement,  1. 
Insurance,  18. 
Rail  Road  Companies,  1  to  6. 
Trespass,  3,  4. 


DEBTOR  AND  CREDITOR. 

1.  Where  assignees,  under  an  assign- 
ment made  for  the  benefit  of  cred- 
itors, reconvey  to  the  assignor  the 
real  estate  embraced  in  such  assign- 
ment, without  having  paid  and  sat- 
isfied the  debts  for  the  payment 
of  which  the  trust  estate  was  cre- 
ated, such  reconveyance  is  abso- 
lutely void,  at  least  as  to  all  credit- 
ors whose  debts  were  provided  for 
in  the  assignment,  and  which  re- 
mained unpaid  at  the  date  of  the 
reconveyance.     Briggs  v.  Palmer, 

392 

2  And  in  a  contest  between  a  person 
claiming  title  under  ami  in  conso- 
nance with  the  trusts  created  by 
the  assignment,  and  an  incumbran- 
cer of  the  title  attempted  to  be 
conveyed  by  the  trustees  in  contra- 
vention of  sucli  trusts,  the  validity 
of  the  mortgage  will  be  in  no  way 
helped  by  the  f;ict  that  the  mort- 
gagees, at  the  time  of  taking  it, 
had  no  actual  notice  of  the  exist- 
ence of  a  claim  against  the  trust 
estate,  or  of  the  assignment,  and 
reconveyance.  ib 

3.  The  assignment,  and  the  reconvey- 
ance, are  matters  of  record,  which 
tlie  statute  makes  sufhcient  notice 
to  all  subsequent  puiciiasers  anri  in- 
'jumbrano  ^rs.      And  such  purchas- 


ers or  incumbrancers,  having  con- 
structive notice  of  the  assignment, 
are  put  upon  inquiry  as  to  all  claims 
and  rights  under  it.  ib 

4.  Trustees  cannot,  by  a  recital  in  a 
reconveyance  of  the  assigned  prop- 
erty, contrary  to  the  fact,  affect  the 
interest  of  the  cestuis  que  trust. 
Therefore  a  recital  that  the  debts 
of  the  assignor  have  all  been  paid, 
v^ill  be  of  no  avail.  ih 

5.  After  a  debtor  has  assigned  his  real 
estate  in  trust  for  the  benefit  of 
creditors,  he,  liaving  no  title,  can- 
not create  an  incumbrance  upon  the 
estate.  A  mortgage  executed  by 
him  will  therefore,  at  most,  only 
operate  as  an  assignment  or  equi- 
table mortgage  of  his  residuary  in- 
terest, after  the  trust  shall  have 
been  fully  executed.  Under  this, 
the  mortgagee  may,  it  seems,  pay  a 
debt  existing  against  the  trust  es- 
tate, before  a  sale  of  the  trust 
propertj'  to  pay  the  debt,  and  a 
transfer  of  the  title.  ib 

6.  But  after  the  title  has  passed  to  a 
bona  fide  purchaser  at  a  judicial 
sale  ordered  for  the  purpose  of  sat- 
isfying a  previous  debt  of  the  as- 
signor, tliere  can  be  no  redemption 
by  any  one  standing  in  the  i)ositioi» 
of  the  assignor,  or  claiming  under 
him  subsequent  to  the  creation  of 
the  trust  estate.  ib 


DEED. 

1.  A  certificate  of  acknowledgment  of 
the  execution  of  a  deed,  by  a  mar- 
ried woman,  stating  that  on  an  ex- 
amination before  tiie  officer  "  sej)a- 
rate  and  ai)art  from  her  husband" 
she  acknowledged  the  execution  of 
the  same  "  witliout  fear  or  compul- 
sion from  him,"  is  a  sufficient  com- 
pliance with  the  statute  requiring 
the  officer  to  certify,  u[)on  an  ac- 
knowledgment by  a  feme  covert, 
that  on  "a  private  examination, 
apart  from  her  husband,  she  exe- 
cuted the  conveyance  freely  and 
without  any  fear  or  compulsion  of 
her  husband."  Dennis  v.  Tarpen- 
ny,  371 

2.  A  deed  of  conveyance,  and  a  bond 
and  mortgage  executed  by  the  gran- 
tee, to  secure  the  payment   of  lh« 


686 


INDEX. 


purchase  money,  and  bearing  even 
date  with  the  deed,  form  parts  of  one 
transaction,  and  are  to  be  construed 
together,  as  one  instrument.  Pepper 
w.'HaigM,  429 

See  Agreement,  10,  11. 

DsBToa  AND  Creditor,  1,  2,  4. 


E 


EJECTMENT. 

1.  Where  an  owner  of  land  conveys  the 
same  to  another,  excei)ting  the  por- 
tions inchided  in  the  hif^hway,  he 
may  maintain  an  action  of  ejectment 
against  tlie  grantee,  for  encroach- 
ments upon  the  highway,  or  for  an 
exclusive  occupation  of  it,  by  the 
latter.     Etz  v.  Daily,  '     32 

2.  In  an  action  of  ejectment  the  plain- 
tiff is  bound  to  show  title  in  himself 
at  the  commencement  of  the  action. 
Layman  v.  Whiting,  559 

S.  If  the  title  upon  which  he  relies  is 
founded  upon  the  foreclosure  of  a 
mortgage,  by  advertisement  under  the 
statute,  proof  of  a  reaular  and  com- 
])lete  foreclosure  is  essential  to  the  va- 
lidity of  that  title.  ih 

4.  If,  in  an  action  of  ejectment,  by  the 
purchaser  of  premises  sold  under  a 
statute  foreclosure,  it  appears  that 
the  affidavit  of  service  of  the  notice 
of  sale,  upon  the  mortgagor,  was  not 
made  until  after  the  commencement 
of  the  action,  the  plaintiff  will  fail 
to  show  title  in  liimself  at  the  time 
the  suit  was  commenced,  and  must 
therefore  be  nonsuited.  ib 

5.  The  making  and  recording  of  an  affi- 
davit of  service,  after  the  commence- 
ment of  the  action,  will  not  A'est  a  title 
in  the  purchaser,  by  relation,  as  of  a 
time  previou")^  so  as  to  enable  him  to 
recoxer.  ib 

5.  Parol  evidence  of  the  service  of  the 
notice  of  sale,  u[)on  the  mortgagor,  is 
admissible-;  but  it  will  not  dispense 
with  the  production  of  the  affidavit 
spi'oilled  in  the  statute.  ih 


ESTOPPEL. 
See  Will  1. 


EVIDENCE. 

1.  A  justice  of  the  peace  cannot  b« 
permitted  to  give  parol  evidence  of 
what  took  place  before  him,i^  seems. 
But  if  his  docket  is  afterwards  given 
in  evidence  the  error  will  be  cured. 
Smith  v.  Compton,  262 

2.  Parol  evidence  is  inadmissible  to 
contradict  the  docket  of  a  justice,  ih 

3.  A  consent  of  the  parties,  in  pres- 
ence of  the  justice,  that  a  cause 
shall  be  submitted  to  the  justice 
conditionally,  with  a  reservation  to 
the  plaTntiffof  liberty  to  withdraw 
the  suit,  IS  u.ndingonthe  parties,  and 
if  entered  by  the  justice  in  his  dock- 
et, it  forms  a  part  thereof,  and  is  no 
more  subject  to  be  contradicted 
than  any  other  part  of  the  docket,  ib 

4.  No  proof  can  be  offered,  of  facts  not 
put  in  issue  by  the  pleadings.  New 
York  Ce7itral  Ins.  Co.  v.  The  Na- 
tional Protection  Ins.  Co.  468 

See  Ships  and  Shipping,  1. 


EXCISE  LAW. 

The  sale  of  ale  in  less  quantities  than 
five  gallons  without  having  a  license 
therefor,  granted  according  to  the 
provisions  of  title  9,  chapter  20,  of 
the  first  part  of  the  revised  statutes, 
is  not  prohibited  by  the  15th  section 
of  that  title,  nor  declared  a  misde- 
meanor by  the  25th  section.  The 
People  V.  Crilley,  246 


EXECUTION. 

1,  The  statute, is  imperative  in  requir- 
ing the  time  and  jiiace  of  holding 
any  sale  of  real  estate  on  execution 
to  be  publicly  advertised  six  weeks 
previously  in  two  ways ;  first  by 
posting  the  notice  in  three  public 
places  in  the  town,  and  second,  by 
printing  the  same  once  in  each  week, 
in  a  newspaper  of  the  county.  Both 
methods  must  commence  six  weeks 
previous  to  the  day  of  sale.  A  less 
time,  in  respect  to  either  branch,  is 
insufficient,  and  renders  the  sale  in 
valid.     Olcott  v.  Rohinson,  1-15 

2.  Where  a  notice  of  sale  was  posted 
forty-three  days  previous  to  the  day 


INDF^. 


687 


of  sale,  making;  six  full  weeks,  but 
the  notice  published  in  the  newspa- 
j)ers,  altliough  it  received  six  sepa- 
rate insertions,  once  in  each  week 
for  six  successive  weeks,  was  first 
published  only  thirty-nine  days ^nc- 
riovs  to  the  day  of  sale  ;  it  was  held 
that  the  publication  was  insufficient; 
and  that  the  sheriff's  deed,  execu- 
ted upon  the  sale,  gave  no  title  to 
the  purchaser.  ib 

3.  Held  also,  that  the  circulation  of 
the  notice  of  sale  in  slips  headed 
"  Piattsburgh  Republican,  Extra,'" 
would  not  aid  the  purchaser;  that 
not  being  such  a  printing  in  a  news- 
paper as  was  contemplated  by  the 
statute.  ib 


EXECUTORS   AND    ADMINISTRA- 
TORS. 

1.  Liability. 

1.  A  testator  directed  his  real  and  per- 
sonal estate  to  be  converted  into 
nloncy, as  soon  as  convenient,  and 
the  i)roceeds  to  be  securely  invested 
in  the  most  productive  manner ; 
leaving  it,  however,  to  the  discretion 
of  his  trustees  to  suffer  such  part  of 
his  personal  estate  as  was  then  in- 
vested in  bank  stock  to  remain  in 
that  state,  so  long  as  they  might 
deem  it  most  for  the  interest  of  the 
testators  family.  At  the  time  of 
his  death,  in  January,  1836,  the  tes- 
tator held  1000  shares  in  the  stock 
of  the  Bank  of  the  United  States. 
The  charter  of  that  bank  expired 
March  4,  1836,  j.nd  on  the  18th  of 
February,  1836,  the  state  of  Penn- 
sylvania charteied  "  The  United 
States  Bank,"  an  institution  design- 
ed to  take  the  plaxie  of  the  former; 
and  by  arrangement  between  the 
two  banks  the  stock  of  the  former 
national  institution  was  transferred 
to  the  new  bank.  The  new  bank 
subsequently  failed,  involving  nearly 
a  total  loss  to  the  stockholders. 
Held  that  the  administrator,  cum 
testameiito  annexo,  did  not  render 
himself  liable  for  the  loss  upon  the 
testator's  stock,  merely  by  suffering 
such  stock  to  remain  in  the  state  it 
was  in  at  the  testator's  death,  and 
to  pass,  as  the  rest  of  the  stock  did, 
to  the  new  bank;  or  by  receiving 
the  dividends  upon  the  new  stock. 
Hogan  v.  De  Peyster,  100 


2.  It  is  a  matter  witiiin  the  jurisdic- 
tion of  the  surrogate  on  the  final 
settlement  of  an  estate,  to  find  what 
each  executor  is  debited  and  cred- 
ited fur;  also  what  they  have  re- 
ceived and  paid  out  jointly  ;  in  order 
that  he  may  determine  what  each 
is  liable  for.      White  v.  Bullock,   91 

3.  Where  there  are  two  executors  of  an 
estate,  one  active  and  the  other  in- 
active, the  latter  will  not  be  held  ac- 
countable for  the  acts  of  the  for- 
mer, if  he  has  reason  to  believe  that 
his  co-executor  is  acting  prudently, 
and  according  to  law.  The  surro- 
gate is  therefore  bound  to  inquire 
whether  one  or  both  are  accounta- 
ble, ib 

4.  And  the  decree  made  by  him,  upon 
such  accounting  is  conclusive,  be- 
tween the  executors,  as  to  the 
amounts  received  and  i)aid  out  by 
each,  and  cannot  be  contradicted  by 
sworn  accounts  of  the  executors, 
produced  by  them  upon  the  ac- 
counting. iL 

2.  Commissions. 

5.  Commissions  are  to  be  divided  be- 
tween executors  according  to  the 
services  rendered  by  them  respect- 
ively ;  and  iti  the  absence  of  any 
other  proof  in  res[)ect  to  such  ser- 
vices, the  share  of  each  is  to  be  de- 
termined by  the  amount  of  moneys 
stated  in  the  surrogate's  decree  to 
have  lM!en  received  and  paiil  out  by 
the. executors,  respectively.  White 
V.  Bullock,  91 

6.  Justice  requires  that  when  an  ex- 
ecutor has  done  nothing,  and  has 
borne  no  responsibility,  he  shall  not 
share  in  the  commissions.  ib 

7.  The  act  of  1849,  (Laws  of  1849,  ch. 
160,)  is  in  accordauce  with  this 
principle.  It  requires  the  surro- 
gate to  apportion  the  commissions 
among  the  executors  according  to 
the  services  rendered  by  them  re- 
spectively, ib 

8.  The  circumstance  that  an  executor 
is  entitled  to  conmiissions,  for  his 
services,  will  not  render  him  an  in- 
competent witness  to  establish  the 
will.     McDcnough  v.  Loughlin,  239 

9.  Those  commissions  are  allowed  by 
statute,  by  way  of  compensation  foi 


688 


INDEX. 


the  executor's  services,  and  are  not 
a  gift  under  the  will.  ib 


F 


FIXTURES. 

1.  Looms,  placed  upon  the  floor  of  a 
woolen  factory  and  fastened  to  sueh 
floor  by  means  of  screws  in  each 
loom, are  a  pernianciit  and  essential 
part  of  the  woolen  factory.  And  in 
the  absence  of  any  proof  that  when 
th('3'  were  thus  annexed  to  the 
building  it  was  not  intended  they 
should  remain  indefinitely  in  their 
position,  to  be  used  as  long  as  they 
were  capable  of  use,  it  will  not  be 
presumed  that  the  annexation  was 
merely  temi)()rary.  They  are  there- 
fore to  be  deemed  fixtures,  as  be- 
tween mortgfigor  and  mortgagee. 
Murdoch  v.  Harris,  407 

2.  And  a  mortgagee  of  the  factory  and 
machinery  will  hold  f-uch  looms,  by 
virtue  of  his  moi'tgage,  in  j)refer- 
ence  to  a  creditor  of  the  mortgagor, 
who  has  levied  upon  the  same  un- 
der an  execution  issued  against  the 
latter;  esiiecially  in  a  case  where  it 
appears  that  the  i)arties  to  the  mort- 
gage have  treated  the  looms  as  fix- 
tures, and  intended  they  should  be 
covered  by  the  mortgage.  ib 


FORECLOSURE. 

See  Mortgage,  4  to  8. 


FOREIGN  LIFE  INSURANCE  COM- 
PANIES. 

1.  The  act  of  April  8,  1S51,  relating 
to  life  insurance  companies  does  not 
prohibit  any  citizeii  of  this  state 
from  applying  for  insurance  to  a  for- 
eign company  which  has  not  compli- 
ed with  tlie  act,  on  his  own  aecount ; 
nor  from  doing  so  by  his  attorney  ; 
nor  from  receiving  the  i)olicy  here, 
by  mail,  when  issued  in  another 
state  ;  nor,  as  a  consequence,  from 
receiving  it  here  through  his  attor- 
ney. But  it  prohibits  the  agent  of  a 
foreign  comjjany  from  making  such 
delivery.     The  People  v.  Imlay,  68 

2.  The  act  does  not  attempt  to  pre- 
vent a  foreign  insurance  company 


which  has  failed  to  deposit  the  se^ 
curity  required  to  be  given  by  it^ 
from  insuring  our  citizens;  nordcu'S 
it  impose  a  i)enalty  uj)on  an  agent 
of  such  a  company  for  acting  for  it, 
if  he  acts  out  of  this  state.  ib 

3.  Signing  a  policy  in  Philadelphia, 
by  an  insurance  company  located 
and  doing  business  there,  and  send- 
ing it  to  the  ajiplicant,  or  the  attor- 
ney of  the  applicant,  in  New  York, 
is  not  a  violation  of  the  statute,     ib 

4.  The  prohiVution  is  expressly  limited 
to  the  acting  within  this  state  as 
agent  of  a  foreign  insurance  com- 
pany. And  the  act  only  intended 
it  to  apply  when  the  actual  agency 
was  in  this  state,  and  the  thing 
done  was  actually  done  in  this 
state.  ib 

5.  It  is  not  9  violation  of  the  act  for  z. 
person  in  this  state  to  act  as  attor- 
ney for  an  applicant  to  a  foreign  in- 
surance company;  provided  the  at- 
torney is  in  goo(l  faith  acting  only  as 
the  attorney  of  the  applicant,  and 
not  as  the  agent  of  the  company, 
under  cover  of  an  attorneyship  for 
the  api)licant.  ih 


FRAUD. 

See  Trover. 

Vendor  ani  Purchaser,  10  to  13. 


G 

GRANT. 

See  Condition,  3,  4. 

GUARANTY. 

A  contract  to  guaranty  the  payment 
of  a  promissory  note,  although  made 
simultaneously  with  the  note,  and 
written  upon  the  same  paper,  and 
upon  a  consideration  ad\iinced  on 
the  credit  of  the  guarantor,  con- 
formably to  a  previous  understand- 
ing, must  express  the  consideration 
upon  which  it  is  made,  or  it  will  be 
void.  The  Glen  Cove  Mvtual  Jns. 
Co.  V.  Harrold,  2i*8 


HIGHWAYS. 
See  Ejectment,  1. 


INDEX. 


689 


HUSBAND  AND  WIFE. 


1.  Where  a  lease  is  executed  by  hus- 
band and  wife,  of  land  in  which  the 
wife  has  an  estate  for  life,  and  the 
lessee  covenants,  in  terms,  to  pay 
renttoboth,  this  of  itself  is  sufficient 
to  entitle  the  husband  and  wife  to 
join  in  an  action  for  the  rent ;  not- 
withstanding the  wife  did  not  ac- 
knowledge the  execution  of  the  lease 
and  therefore  was  not  bound  by  it. 

*    Jacques  v.  Short,  269 

2.  One  effect  of  uniting  the  wife,  in 
such  an  action,  is  that  upon  the  death 
of  the  husband  his  interest  in  the 
cause  of  action  survives  to  the  wife, 
and  no  interest  vests  in  the  personal 
representatives  of  the  husband,     ib 

3.  By  uniting  the  wife,  the  husband 
signifies  his  assent  to  giving  her 
.»iuch  an  interest  in  the  cause  of  ac- 
tion :  and  he  thereby  vests  the  wife 
with  his  interest,  in  the  event  of  his 
death.  ib 

4.  For  this  reason  the  section  of  the 
statute  which  gives  to  the  executors 
or  administrators  of  a  person  to 
whom  rent  shall  have  been  due  and 
unpaid  at  the  time  of  his  death,  the 
same  remedy,  by  action,  for  the  ar- 
rears, which  the  decedent  might 
have  had,  if  living,  is  not  applicable 
to  such  a  case.  ib 

See  Trusts  and  Trcstees,  7,  8,  9. 

WlLL.l. 


INJUNCTION. 

1.  The  falsely  and  fraudulently  ob- 
taining an  injunction,  and  the  dam- 
ages occasioned  by  its  service,  are 
not  a  matter  of  account,  and  form 
no  ground  for  a  bill  ih  equity  or  an 
action  under  the  statute.  (1  R.  S. 
760,  <i  9.)     Hall  v.  FUher,  441 

2.  The  bond  given  by  the  party  ob- 
taining an  injunction  affords  an  am- 
ple remedy  for  any  damages  sus- 
tained by  the  defendant,  and  to  an 
action  upon  such  bond  he  must  re- 
sort for  indemnity,  ii 

Vol.  XX.  87 


INSURANCE  (FIRE.) 


1.  Who  may  sue,  in  case  of  loss, 

1.  A  policy  of  insurance  is  a  contract 
of  indemnity,  and  without  an  inter- 
est in  the  subject  of  insurance,  at  the 
time  of  the  tire,  the  holder  of  the 
policy  su.stains  no  loss.  Peabody  v 
TTie  Washington  County  Mut.  Int. 
Company,  339 

2.  Hence  an  assignment  of  a  policy  as 
collateral  security  for  the  payment 
of  a  sum  of  money  by  the  assignor, 
will  not  enable  the  assignee  to  main- 
tain an  action  on  the  policj',  in  case 
of  loss;  where  it  does  not  appear 
from  the  complaint,  that  he  had,  at 
the  time  of  the  fire,  any  interest  in 
the  property  insured.  ib 

3.  But  where  the  assignor  remains  the 
owner  of  the  property,  until  the  time 
of  the  fire,  the  whole  loss  is  sustain- 
ed by  him.  He  continues  the  owner 
of  the  policy,  subject  to  the  title  of 
the  assignee  to  it  for  the  payment 
of  his  debt,  and,  it  not  being  availa- 
ble to  the  assignee,  the  assignor 
alone  may  recover  upon  it,  to  the 
extent  of  the  loss.  ib 

2.  Contracts  made  by  agents. 

4.  A  contract  for  insurance,  made  by 
an  individual  who  acts  as  the  agent 
of  both  parties  in  making  the  s-ame, 
is  voidable  in  a  court  of  equity,  at  the 
election  of  the  principals,  or  either 
of  them.  New  York  Central  Ins. 
Co.  V.  The  National  Protection  Ins. 
Co.  468 

6.  Where  an  agent,  without  the  knowl- 
edge of  his  principal,  is  acting  also 
in  behalf  of  the  other  party,  in  mak- 
ing a  contract,  the  presumption  of 
fraud  is  not  an  unreasonable  one. 
But  the  principle  forbidding  such 
contracts  is  a  mere  rule  of  equity. 
If  the  proper  forms  have  been  ob- 
served, the  conveyance  is  good  at 
law,  and  the  title  passes.  The  con- 
tract is  not  void,  but  only  voidable. 

ib 

6.  But  this  defense  cannot  be  relied  on 
in  an  action  upon  a  j)olicy  of  insur- 
ance, if  it  is  not  set  up  in  the  an- 
swer, ib 

7. A  general  agent  of  an  insurance 
company  for  effecting  insurances  in 
their  behalf,  while  acting  within  the 


690 


INDEX. 


general  scope  of  his  authority  in 
making  an  insurance,  will  bind  his 
principals,  altliough  he  departs  from 
ills  instructions  ;  unless  the  assured 
have  notice  that  he  is  exceedins 
his  authorit)'.  ib 

8  The  rule  that  whatever  is  known 
to  the  agent  must  he  presumed  to 
be  linown  to  the  principal,  it  seems, 
is  confined  to  that  class  of  cases 
where  the  knowledge  of  the  facts 
comes  to  the  agent  while  lie  is  act- 
ing for  his  principal,  in  the  course 
of  the  very  transaction  which  be- 
comes the  subject  of  the  suit.        ib 

d.  Hence  the  fact  that  an  agent  by 
whom  an  insurance  is  effected,  had 
previously  received  instructions 
from  his  principals  the  insurers, 
will  not  be  regarded  as  notice  to  the 
insured  of  those  instructions,  and 
that  he  had  i^xceeded  his  authority, 
although  the  agent  was  at  the  time 
of  making  the  insurance,  the  secre- 
tary of  the  insured.  ib 

3.   Conditions. 

10.  Whore  conditions  of  insurance, 
annexed  to  the  policy,  are  by  an 
express  provision  in  the  policy, 
made  a  part  of  the  contract,  they 
have  the  same  force  and  effect  as 
if  contained  in  the  bod}'  of  the  pol- 
icy. New  York  Central  Ins.  Co.  v. 
The  National  Protection  Ins.   Co. 

468 

11.  One  of  the  conditions  of  a  policy 
was  that  no  insurance  should  be 
binding  until  the  actual  pa3'nient 
of  the  premium.  The  monej'  was 
in  a  bank  where  the  agent  was  in 
the  habit  of  making  his  deposits, 
deposited  to  the  credit  of  the  insur- 
ed. The  casliier  told  the  agent  of 
the  insurers,  at  the  time  the  ar- 
rangement for  the  insurance  was 
made,  that  he  could  have  the  money. 
The  agent  directed  him  to  let  it  lie  ; 
saying  that  when  lie  wanted  the 
money  he  would  draw  for  it.  It 
was  not  in  fact  drawn  by  him  until 
after  the  fire.  Held  that  the  agent 
bad  waived  a  strict  compliance  with 
the  condition,  and  that  he  had  au- 
thority to  do  so.  ib 

12.  Under  a  condition  in  a  policy,  re- 
(luiriiifj  the  assured  to  aive  notice  to 

,  the  insurers  of  any  subsecjuent  insur- 
ance vvhicli  may  be  effected  upon  the 


same  property,  the  assured  is  hound 
to  give  notice  of  a  policy  which  is 
not  void  or -voidable  upon  its  face, 
hut  is  merely  voidable  by  the  under- 
writers upon  due  jjroof  of  the  facts. 
Biglcr  v.  The  New  York  Central 
Ins.  Co.  63-^ 

13.  If  the  assured  retains  the  second 
policy  until  after  the  destruction  of 
the  property  insured,  and  then  brings 
an  action  upon  it.  thereby  afhrniing 

.  its  validity,  which  action  is  settled  by- 
the  givino;  and  accepting  the  notes  of 
officers  of  the  insurance  company, 
which  the  insured  still  holds,  he  can- 
not treat  the  second  insurance  as  void 
for  the  want  of  a  compliance  with 
one  of  its  conditions,  but  is  bound  to 
give  notice  thereof;  although  the 
second  policy  he  voidable  if  the  in- 
surers see  fit  to  set  up  the  defense,  ib 

4.  Payment  of  premium. 

14.  Where  a  policy  is  issued  and  de- 
livered to  the  insured,  and  the  {ire- 
mium  is  acknowledged  in  the  jmli- 
cy  as  actually  received,  this  will  be 
lield  as  conclusive,  upon  the  fact  of 
payment,  and  will  bind  the  insurer. 
New  York  Central  Ins.  Co.  v.  The 
National  Protection  Ins.  Co.      468 

5.  Notice  of  loss. 

15.  Where  a  fire  occurred  on  the  15th 
of  June,  and  the  insured  knew  of  it 
on  the  18th,  and  sent  notice  to  tht! 
insurers,  by  mail,  on  the  23d  ;  Held, 
that  this  was  a  sufficient  compliance 
with  a  condition  in  tlie  policy,  re- 
quiring notice  of  loss  to  be  given 
forthwith  ib 

16.  Such  a  provision  has  never  been 
construed  literally  to  require  notice 
on  the  day.  It  has  always  been  held 
that  due  diligence,  under  all  the 
circumstances,  was  all  that  was  re- 
quired, ib 

6.  What  is  covered  by  policy. 

17-  A  policy  of  insurance  upon  a 
"  steam  saw-mill"  covers  not  only 
the  building  itself,  but  all  the  ma- 
chinery and  fixtures  therein,  neces- 
sary to  make  it  a  steam  saw-mill  in 
all  its  parts.  Bigler  v.  The  New 
York  Central  Insurance  Co.        63f 

7.  Reinsurance. 

18.  In  an  action  upon  a  policy  of  rein- 
surance, the  reinsurer  is^  liable  i<?  thf 


mDEX. 


691 


Insurer  for  the  costs  and  expenses 
incurred  in  defending  a  suit  brought 
hy  the  fiarty  originally  insured.  New 
York  Central  Ins.  Co.  v.  The  Na- 
tional Protection  Ins.  Co.  468 


INTEMPERANCE. 

See  Prohibitory  LiacoR  Law. 

I 
J 

JOINDER  OF  CLAIMS. 

1.  A  complaint  filed  by  a  plaintiff  in 
his  own  right  as  well  as  in  the  char- 
acter of  administrator  of  E.  H., 
against  the  defendants  as  the  exec- 
utors of  H.  F.,  alleged  that  the  plain- 
tiff and  his  intestate  E.  H.  were,  in 
the  lifetime  of  the  latter,  tenants  in 
common  owning  one  undivided  quar- 
ter with  H.  F.  in  his  lifetime,  who 
owned  three  quarters,  of  a  lot  of 
land,  and  iron  ore  bed,  &c.  And 
the  plaintiff  claimed  that  the  de- 
fendants should  account  to  him  in 
person  and  as  administrator  of  E.  U., 
for  their  share  of  the  rents  and  prof- 
its, avails  and  income  of  the  ore  bed, 
&c.  and  for  their  share  of  the  ore 
dug  and  raised  by  H.  F.,  and  for 
their  share  of  the  moneys  had  and 
received  by  H.  F.,  including  what 
he  ought  to  have  received  for  the 
use,  rents  and  ])rofits  of  the  im- 
provements, buildings,  fixtures  and 
erections  of  the  plaintiff  and  E.  H., 
and  for  the  wear  and  damage  of  the 
same  &c.,  and  for  the  loss,  damage 
and  injury  sustained  by  the  plaintiff 
and  E.  II.  by  reason  of  the  acts  done 
by  H.  F.,  while  in  the  exclusive 
l)OSsession,  &c.  Held,  on  demurrer, 
that  there  was  an  improper  joinder 
of  claims  in  the  complaint,  in  at- 
tempting to  unite  the  rights  of  the 
plaintiff  personally  with  those  in  his 
rei)resentative  character ;  the  claims 
being  inconsistent  and  adverse. 
Hall  V.  Fisher,  441 

2.  The  same  complaint,  in  addition  to 
a  claim  for  an  account,  after  setting 
oTit  the  title  of  the  plaintiff  and  his 
intestate,  to  one  quarter  of  the  lot 
and  ore  bed,  and  showing  large  and 
valuable  erections  and  fixtures  made 


by  them,  averred  that  H.  F.,  con- 
triving and  intending  to  injure  and 
defraud  the  plaintiff  and  E.  H.  and 
falsely  pretending  that  they  were 
not  the  owners  of  one-fourth  part  of 
said  lot  and  ore  bed,  but  that  he 
was  sole  owner  thereof,  procured  an 
injunction,  and  caused  the  same  to 
be  served  on  the  plaintiff  and  E.  H., 
restraining  them  from  digging  or 
raising  any  iron  ore  on  said  lot,  &c., 
and  by  means  of  such  service  there- 
of occasioned  all  the  damages  which 
the  plaintiff  alleged  were  .sustained. 
The  plaintiff  also  claimed  to  recovei 
damages  for  trespass  on  houseS; 
erections  and  fixtures  which  the 
l)laintiffand  E.  H.  erected,  at  an  ex- 
pense of  $5000,  and  for  their  share 
of  the  ex|»ense  of  those  erections. 
The  complaint  also  alleged  that  H.F. 
diverted  to  his  own  use  a  quantity 
of  ore  dug  and  raised  by  the  plain- 
tiff and  E.  H. ;  and  that  he  received 
$!20,000  profits,  and  might  with 
proper  management,  have  received 
$20,000  more.  Held  that  the  com- 
plaint was  defective  in  joining 
causes  of  action  arising  upon  con- 
tract,  with  claims  of  damages  for 
injuries  to  propei'ty  and  for  torts 
and  causes  of  action  arising  from 
negligence,  with  a  claim  for  an  ac- 
count of  rents  and  profits  of  real  es- 
tate, ih 

3.  In  an  action  to  recover  damages  for 
a  neglect  of  duty  by  the  defendant 
as  canal  commissioner,  the  com- 
j>laint  alleged  that  the  defendant 
being  canal  commissiorter,  it  was  his 
duty  to  repair  the  banks  of  the  canal 
at  the  j)lace  where  the  injury  was 
sustained.  Heldi\\a.t  this  allegation 
of  the  defendant's  oflScial  character 
was  made  for  the  jjurpose  of  charg- 
ing him  with  the  duty  for  a  neglect 
of  which  the  action  was  brought; 
and  that  if  any  neglect  of  ofhcial 
duty  which  rendered  him  liable  to 
an  action,  in  any  form,  was  alleged, 
the  action  was  properly  brought 
against  him  in  his  j)rivate  character; 
and  that  the  several  causes  of  action 
were  properlv  united.  Griffith  v. 
Pollctt,  '  620 

4.  Held  also,  that  it  was  no  objection 
to  the  complaint,  that  it  did  not  con- 
tain any  averment  that  the  defend- 
ant ]i:id  funds  sufl[icient  to  repair 
the  banks  of  the  canal.  tl 


692 


INDEX. 


JUSTICES'  COURTS 

1.  The  provision  of  the  statute,  pre- 
scribing tlie  time  within  which  a 
venire  for  a  second  jury,  upon  a  dis- 
charge of  tlie  first  !)}•  a  justice,  for 
tlieir  failure  to  agree,  sliall  l)e  made 
returnable,  (2  R.  S.  'lib,  \)  111,) 
was  designed  for  the  convenience 
of  the  parties,  and  a  compliance 
with  it  may  be  waived  by  their  con- 
senting that  the  process  be  return- 
able at  a  later  period.  Fiero  v. 
Reynolds,  275 

2.  Where  the  return  of  the  justice,  af- 
ter stating  the  discharge  of  the  first 
jury,  added,  "  I  then  proposed  to 
the  parties  to  posti)one  the  cause 
until  the  17th  day  of  May,  1853,  at 
&c.,  to  which  neither  party  made 
any  objection.  I  then  issued  an- 
other venire,"  returnable  at  the 
time  and  })lace  i)roi)osed ;  Held, 
that  it  must  be  inferred,  upon  the 
princi|)le  that  every  reasonable  in- 
tendment is  to  be  made  in  su[)port  of 
a  judgment,  that  the  parties  under- 
stood the  i)roposition,and  said  noth- 
ing indicating  dissent;  that  the  i)ar- 
ties  were  in  a  position  requiring 
them  to  express  their  dissent,  or  be 
concluded  ;  and  that  the  omission 
to  object  was  equivalent  to  an  ex- 
jiress  consent  to  the  postponement. 
In  such  a  case  a  consent,  in  express 
terms,  is  not  necessary.  ib 

3.  An  omission  to  challenge  is  a  waiver 
of  all  objection  to  a  juror,  in  like 
manner  as  an  omission  to  plead  a 
defense  is  a  waiver  of  the  defense. 
And  this,  whether  there  be  an  a|)- 
pearance  or  not.  Clark  v.  Van 
Vrauc/cen,  278 

i.  Accordingly,  where,  in  an  action  be- 
fore a  justice  of  the  peace,  an  ad- 
journment took  place,  after  issue 
'oined,  and  ihe  defendant,  although 
present,  did  .'lOt  appear  on  the  trial, 
it  was  held  that  he  could  not,  on 
appeal  from  the  judgment,  raise  the 
objection  that  some  of  tlie  jurors 
wl  o  sat  upon  the  trial  were  not 
competent,  as  such,  for  want  of  the 
requisite  property  qualification,     ib 


JUSTICE'S  DOCKET. 
See  Evidence,  1,  2. 


LEASE. 

1.  Where  '.and  is  demised  to  A.  a.ui 
he  conveys  the  same  to  B.  by  deed, 
without  any  reservation  or  refer- 
ence to  the  lease,  and  B  convey.s  to 
C.  and  the  latter  to  D.  in  like 
manner,  D.  acquires  all  the  interest 
of  A.,  the  original  lessee,  therein, 
and  becomes  in  law  an  assignee  'of 
the  lease ;  and  as  such  tie  is  liable 
on  the  covenant  to  pay  rent.  Jac- 
ques V.  Short,  269 

2.  An  assignee  is  liable  on  all  coven- 
ants which  run  with  the  land — as 
covenants  to  repair,  ))ay  rent,  &c- — 
although  not  expressly  named  there- 
in, ib 

3.  And  he  cannot  claim  any  benefit 
from  the  omission  of  the  lessor  to 
record  the  lease.  He  is  ohai-geable 
with  notice  of  the  lessor's  right.s; 
inasmuch  as  they  fully  ajjpear  in 
the  chain  of  his  own  title.  ib 


LEGACY  AND  LEGATEE. 

1.  Where  there  is  a  bequest  of  the 
whole  residue  of  the  testator's  es- 
tate, after  payment  of  debts  and 
legacies,  to  one  person  for  life,  lim- 
ited as  to  part,  upon  a  contingency, 
to  the  use  thereof  for  life,  with  a 
v.ilid  gift  over  of  that  i)art,  upon  the 
happening  of  the  contingency,  and 
as  to  the  rest,  absolute  of  the  en- 
tire estate,  as  to  the  part  of  the 
estate  to  which  the  contingency  re- 
lates, the  income  car.  only  be  paid  to 
the  residuary  legatee;  but  as  to  that 
portion  of  the  estate  resfjccting 
which  the  bequest  is  absolute,  the 
principal  must  be  paid.  Trustees 
of  ihe  Theological  Seminary  of 
Auburn  v.  Cole,  o21 

2.  The  gift  over  docs  not  attach  to 
the  entire  residuary  estate,  so  as  to 
render  the  whole  a  security  for  its 
payment,  but  the  executor  may,  as 
to  the  legatee,  set  apart  a  principal 
sum  suflicient  to  discharge  the  gift, 
and  proceed  to  satisfy  the  other 
legacies.  ih 

3.  And  the  residuary,  and  any  <  ther 
legatee,  who  has  been  paid  his  W'g- 
acy,  will  not,  in  case  of  a  si  bsu- 


INDEX. 


693 


qnent  deficiency  of  assets  to  pay  the 
gift,  from  the  waste  of  the  execu- 
tor, be  obliged,  for  that  reason,  to 
refund  any  part  of  wliat  he  has  re- 
ceived, ib 

4  The  residuary  legatee  is  not  enti- 
tled, before  the  happening  of  the 
contingency,  to  demand  of  the  ex- 
ecutor, on  account  of  the  legacy 
to  him,  any  thing  farther  than  the 
balance  of  such  legacy,  after  de- 
ducting a  sum  sufficient  to  pay  the 
contingent  gift  when  it  shall  become 
payable.  ib 

5.  The  administrator  of  the  residuary 
legatee  is  not  liable  to  the  contin- 
gent legatee,  for  the  payment  of  the 
contingent  gift,  after  the  contin- 
gency lias  occurred,  without  at  least 
an  allegation,  and  proof,  that  his 
intestate,  or  himself,  has  received 
more  than  the  intestate  was  entitUnl 
to  receive,  and  of  such  other  cir- 
cumstances as  would  clotlie  him 
with  the  chaiacter  of  a  trustee  for 
the  plaintiff  as  to  the  excess.  ib 

LIBEL. 

1.  Whether  matter  contained  in  a  pub- 
lication is  libellous  or  not,  is  a  ques- 
tion for  the  decision  of  the  court ; 
but,  if  libellous,  it  is  for  the  jury, 
and  Tiot  the  court,  to  say  whether 
it  is  a|)plioable  to  the  plaintiff. 
Green  v.  Telfair,  11 

2.  Thus  wljere  a  libellous  article  did  not 
point  to  any  person  in  particular,  but 
the  plaintiff  had  expressly  averred, 
in  his  complaint,  that  it  was  publish- 
ed of,  and  concerning  himself,  and 
he  had  proved  some  facts  tending  to 
sustain  that  averment;  Held,  that 
it  should  have  been  submitted  to 
the  jury  to  determine  whether  the 
libel  was  intended  to  apply  to  the 
plaintiff.  ib 

LICENSE. 

A  parol  license  to  divert  water  from  a 
water  course,  so  as  to  prevent  it  from 
])a8singovei  another's  land,  is  valid. 
Rathbone  \.  McConnell,  311 

LIMIT.VTIONS,   STATUTE   OF. 

1.  The  110th  section  of  the  code  which 
requires  that  a  premise,  to  take  a 


case  out  of  the  operation  of  the 
statute  of  limitations,  shall  be  in 
writing,  is  not  apidicable  to  cases 
■where  the  right  of  action  had  ac- 
crued before  the  adoption  of  the 
code.     Gillespie  v.  Rosekrants,     35 

2.  Rights  of  action  which  had  accrued 
prt'vious  to  flu;  time  when  the  code 
was  enacted,  and  which  then  exists 
ed,  are  expressly  excluded  (by  sec. 
66)  from  tlie  operation  of  the  sec- 
tion which  requires  that  a  new 
l)romise,  in  order  to  take  a  case  out 
of  the  statute  of  limitations,  shall 
be  in  writing.  Glen  Cove  Mutual 
Ins.  Co.  V.  Harrold,  208 


M 

MALICIOUS  PROSECUTION. 

An  action  for  malicious  i)rosecution 
will  not  lie  until  the  final  termina- 
tion of  the  suit;  and  the  complaint 
must  allege  a  want  of  jiroba'ble 
cause,  by  averiing  that  the  suit  was 
finally  determined  in  favor  of  the 
defendant  therein.     Hall  v.  Fisher, 

441 


MANDAMUS. 

1.  Where  an  office  is  already  filled  b'* 
a  j)erson  who  has  been  admitted 
and  sworn,  and  is  in  by  color  of 
right,  a  mandamus  is  never  issued 
to  admit  another  i)erson  ;  the  proper 
remedy  of  the  applicant  being  a  qim 
warranto,  or  the  action  substituted 
in  its  place  by  the  code.  The  Peo- 
ple, ex  rel.  Lockwood,  v.  Scruglia'/n, 

302 

2.  But  where  the  relator  had  been, 
for  several  years  before,  and  was  at 
the  time  when  the  commbision  to 
the  defendant  was  i.ssued,  the  act- 
ual occupant,  claiming  under  color 
of  right  to  hold  the  office,  and  nev- 
er having  at  any  time  relinquished 
it;  Held  that  if  his  claim  was  valid, 
neither  the  commission  to  the  de- 
fendant nor  the  interference  of  the 
latter  in  the  di.scharge  of  the  du- 
ties, would  constitute  an  actual  ex- 
pulsion from  the  office,  inasmuch  as 
the  {)ossession  would  follow  the 
right  ;  and  that  it  was  noi  a  case  of 
expulsion,    but   of   interference  by 


694 


INDEX. 


tlie  defendant  with  the  functions  of 
an  office  actually  held  by  another,  ib 

3.  In  such  a  case  the  incumbent  should 
not  be  required  to  elect  to  consid- 
er himself  out  of  possession  of  the 
office,  and  then  be  obliged  to  resort 
to  a  tedious  action  to  procure  his 
restoration.  ih 

4  The  relator  was  duly  elected  a  brig- 
adier general,  by  the  field  officers 
of  his  brigade,  in  1811.  He  held 
the  office,  and  was  in  the  discharge 
of  its  duties,  when  the  act  of  May 
13,  1846,  was  passed.  Under  that 
act  a  brigade  was  A>rnied,  consist- 
ing of  the  militia  of  his  |)revious 
command,  with  a  slight  exce])tion, 
with  the  addition  of  the  militia  of 
three  other  counties.  The  relator 
was,  on  the  9th  of  June,  1847,  as- 
signed to  the  c(mimand  of  the  brig- 
ade thus  constituted,  (the  7th)  pur- 
suant to  a  provision  contained  in 
the  8th  section,  in  the  following 
words  :  "  The  brigadier  general  in 
commission  and  highest  in  rank  re- 
siding in  such  brigade  district  shall 
be  the  coiiimanding  officer  of  such 
brigade."  He  held  such  command 
when  the  constitution  of  1846  went 
into  effect.  By  that  instrument  the 
provision  for  electing  brigadier  gen- 
erals by  the  field  officers  of  the 
brigade  was  continued.  The  5th 
section  of  the  11th  article  is  in  these 
words  :  "  The  commissioned  officers 
of  the  militia  shall  be  commission- 
ed by  the  governor,  and  no  commis- 
sioned officer  shall  be  removed  from 
office,  unless  by  the  senate,  on  the 
recommendation  of  the  governor, 
stating  the  grounds  on  which  such 
removal  is  recommended,  or  by  the 
decision  of  a  court  martial,  ])ursu- 
ant  to  law.  Tlie  preserd  officers  of 
the  militia  shall  hold  their  commis- 
sions subject  to  remoral  as  before 
provided."  On  the  5th  of  May, 
1855,  the  governor  issued  a  com- 
mission to  the  defendant,  as  briga- 
dier general  of  the  7th  brigade, 
and  on  the  same  day  issued  a  gen- 
eral order,  revoking  so  much  of  the 
order  of  June  9th,  1847,  as  assigned 
the  command  of  the  brigade  to  the 
relator,  and  directed  the  defendant 
to  assume  the  command  of  the 
brigade.  Ifcld  that  the  governor 
was  not  autliorized,  by  the  act  of 
April  17, 1854,  or  any  other  statute, 
to  dis|)lace  the  relator,  or  toai)i)oint 
the   defendant ;  and  that  both  the 


commission  to  the  defendant  ard 
the  general  order  accompanjing  it 
were  null  and  void.  A  peremptory 
mandamus  was  accordingly  awanl- 
ed,  requiring  the  defendant  to  i)er- 
mit  the  relator  to  exercise  the  of- 
fice of  brigadier  general,  without 
interruption  or  intrusion  from  or  by 
the  defendant.  %A 

See  Board  of  Supervisors. 

Mutual  Life  Ins.  Companies. 


MARRIED  WOMEN. 


iiee  Deed,  1. 
Will   1. 


MASTER  AND  SERVANT. 

A  servant,  to  be  entitled  to  recover  of 
his  principal  for  an  injury  happening 
to  him  in  the  course  of  his  service, 
through  defects  in  the  machinery  &c. 
used  in  the  discharge  of  his  duties, 
must  prove  actual  notice  to  his  prin- 
cipal of  the  defects.  And  in  order  to 
be  able  to  prove  notice,  he  must  al- 
leiic  it  in  his  complaint.  McMillan 
V.  The  Saratoga  and  Washington 
Rail  Road  Company,  449 

See  Rail  Road  Companies,  9,  10. 


MAXIMS. 

The  maxim  de  minimis '.1071  curat  lex 
is  not  an  appropriate  answer  to  an 
action  for  violating  a  clear  legal  right. 
T'he  EllicottvilU  and  Great  Valley 
Plank  Road  Co.  v.  The  Buffalo  and 
Pittsburgh  Rail  Road  Co.  644 


MORTGAGE. 

1.  Consideration. 

1 .  The  sale  of  a  pretended  title  to  land 
is  an  illeaal  consideration.  It  is  both 
criminal  and  immoral ;  and  a  mort- 
gage given  for  the  purchase  money  is 
void.     Pepper  v.  Uaight,  429 

2.  Where  a  mortgage  contains  a  clause 
showing  that  a  part  of  its  consider- 
ation is  the  sale  of  ceitain  premises 
in  the  i)Ossession  of  a  third  person, 
and  held  adversely  by  him,  under  a 
claim  of  title,  the  contract  is  diiectlr 


INDEX. 


695 


In  conflict  with  the  statute  prohibit 
ing  the  sale  of  pretendefl  titles.  (2 
R.  S.  691,  ^  6.)  And  both  parties 
are  guilty  of  a  misdemeanor,  and  the 
Contract  is  entirely  void.  id 

2.  CertijUati  of  acknawTcdgment. 

5.  Where  a  mortgage  purports  to  have 
been  executed  by  a  corporation, 
through  its  treasurer,  a  certificate  of 
acknowledgment  .stating  that  the 
treasurer  testified,  before  the  oflScer, 
that  he  was  the  treasurer  of  the  cor- 
poration ;  that  it  was  a  corporation, 
but  had  no  corporate  seal ;  that  he 
signed  his  name  to  the  mortgage  and 
aflSxed  his  own  seal  thereto,  by  the 
order  and  resolution  of  the  trustees 
of  said  corjjoration  duly  made  and 
given  in  writing ;  and  that  the  same 
W'as  executed  bj-  him  as  such  treas- 
urer, for  the  i)urposes  therein  men- 
tioned, is  prima  facie  sufficient  evi- 
dence of  tlie  due  execution  of  the 
mortgage,  without  producing  and 
proving  the  resolution  of  the  trustees ; 
where  the  instrument  is  oflTered  for 
the  purpose  of  proving  an  act  or 
acknowledgment  of  their  pecuniary 
condition,  by  the  mortgagors.  Hwn^ 
ter  V.  The  Hudson  River  Iron  and 
Machine  Co.  493 

3.  Foreclosure. 

i.  Upon  the  foreclosure  of  a  mort- 
gage by  advertisement  and  sale  un- 
der the  statute,  a  copy  of  the  notice 
of  sale  must  be  served  upon  the 
mortgagor,  if  he  is  living,  or  upon 
his  personal  representatives  if  dead; 
otherwise  there  can  be  no  valid  fore- 
closure.    Cole  V.  Mojitt,  18 

5.  If  the  party  alleging  the  validity  of 
the  jiroceedings  would  show  an  ex- 
cuse for  not  serving  the  mortgagor 
with  notice,  he  must  prove  the 
death  of  the  mortgagor,  by  legal 
evidence,  and  not  by  mere  hearsay 
or  reputation.  ib 

6  The  right  of  a  mortgagee  to  acquire 
the  title  to  the  mortgaged  premises 
upon  a  sale  under  the  statute,  is 
given,  and  tlie  manner  in  which  the 
title  is  to  l)e  transferred  to  him,  is 
rcuulated,  by  statute.  Layman  v. 
Whiiing,  559 

7.  In  the  absence  of  a  dcefl  to  the  pur- 
chaser, from  the  mortgagee,  the  affi- 
davits of  the  publication  and  posting 


and  service  of  the  notices  of  sale,  &c., 
take  tlie  place  of  such  a  deed,  and 
operate  as  a  statute  conveyance 
They  are  necessary,  in  order  to  com- 
plete the  foreclosure,  and  transfer 
the  title  to  the  mortgaged  premises ; 
and  until  they  are  made  and  com- 
pleted no  title  will  vest  in  the  pur- 
chaser, ih 

8.  And  if,  in  an  action  of  ejectment  by 
tlie  purchaser,  it  appears  that  the 
affidavit  of  seiTice  of  the  notice  of 
sale  upon  the  mortgauor  was  not 
made  until  after  the  commencement 
of  the  action,  the  ydaintiff  will  fail  to 
show  title  in  himself  at  the  time  the 
suit  was  commenced,  and  must  there- 
fore be  nonsuited.  t'A 

4.  Sale  of  premises ;  title. 

9.  Where  the  title  to  property  pur- 
chased at  a  foreclosure  sale  was  ob- 
jected to, on  the  ground  that  the  or- 
der of  court  authorizing  the  execu- 
tion of  the  mortgage  was  void  against 
devisees,  it  was  held  that  the  title 
would  be  rendered  good  by  the  ex- 
ecution of  a  release  by  the  devisees. 
Grady  v.  Ward,  543 

10.  And  the  devisees  being  of  age  and 
consenting  to  release  their  interests, 
and  the  release  having  been  ready 
before  the  hearing;  it  was  further 
held  that  the  purchaser  was  not  ex- 
cused from  taking  the  title.  ib 

11.  If  the  title  of  a  mortgagor  is  good 
by  adverse  ])ossession,  that  is  such 
a  title  as  a  ])urchaser  at  a  foreclos- 
ure sale  is  bound  to  take.  « 

See  Covenant,  1,  2. 

FlXTUBES. 


MUTUAL  LIFE  INSURANCE  COM- 
PANIES. 

1.  Mutual  Life  Insurance  Companies, 
incorporated  jirevioiis  to  the  year 
1849,  are  liable  to  taxation  upon 
their  accumulations,  as  capital.  'iTie 
People,  ex  rel.  The  Mutual  Life 
Ins.  Co.  V.  Board  of  Stipervisors,  81 

2.  And  where  a  company  of  that  de- 
scription having  a  fund,  employed 
in  its  business,  amounting  to  nearly 
three  millions  of  dollars,  was  taxed 
by  the  assessors  upon  only  SlOO.tXJO, 


696 


INDEX. 


of  personal  property,  it  loas  held 
that  the  tax  commissioners,  on  re- 
viewing the  assessment  roll,  had  the 
power  to  add  5{;90O,OOO  thereto,  mak- 
ing the  amount  of  personal  propertj' 
belonging  to  the  company,  liable  to 
taxation,  one  million  of  dollars,  and 
that  the  board  of  supervisors  was 
right  in  refusing  to  i-estore  the  ori- 
ginal assessment,  and  in  confirming 
the  judgment  of  the  commissioners. 

ib 

3.  A  judgment,  entered  at  a  special  term, 
denying  an  application  fov &manila- 
mus,  to  compel  the  board  of  su|)ervi- 
sors  to  restore  or  reduce  the  assess- 
ment to  the  sum  of  ^100,000,  and  to 
apportion  or  fix  the  tax  upon  that 
amount,  instead  of  one  million  of  dol- 
lars, and  to  correct  the  tax  accord- 
ingly, was  therefore  atHrmed.  ii> 


N 

NEGLIGENCE. 
Ste  Rail  Road  Companies,  6,  7,  8. 


0 


OPINIONS  OF  WITNESSES. 

1.  The  value  of  services  may  be  proved 
by  the  opinions  of  witnesses  who  are 
acquainted  with  the  value  of  labor  in 
the  vicinity.     Lewis  v.  Tri(fkey,  387 

2.  But  a  defendant  cannot  prove  by 
witnesses  what  the  plaintiflfs  services 
were  worth  ovei-  and  above  his  board, 
clothing,  &c.  furnished  by  the  de- 
fendant, without  proving  or  offering 
to  prove  that  tlie  witnesses  knew  the 
quantity  or  value  of  either  item  as- 
sumed by  the  question  to  have  been 
furnished.  ib 

3.  Neither  can  the  defendajit  be  permit- 
ted to  ask  a  witness  how  much  under 
all  the  circumstances,  were  the  plain- 
tiff's  services  worth,  over  his  board. 

ib 


P 

PARTIES, 

See  Creditor's  Suit,  3  to  7. 
Pleading,  8,  9. 


PARTITION. 

It  is  well  settled,  that  tenants  in  con- 
mon  may  make  partition  by  parol ; 
and  that  it  is  binding  when  followed 
by  possession  accordmg  to  the  parti- 
tion.    Mount  V.  Morton,  12<1 

See  Will,  1. 


PLANK  ROADS. 

1.  In  an  action  by  a  pi  auk  road  compa- 
ny, the  plaintiffs,  to  establish  their 
incorjwration,  proved  that  notice  of 
opening  the  books  of  subscription  as 
required  by  the  lows  of  1847  was 
properly  given ;  that  stock  to  tlit) 
amount  of  over  $500  per  mile  was  suIh 
scribed  to  tlie  original  articles  of  as- 
sociation ;  that  directors  were  elected, 
on  due  notice ;  that  articles  of  associ- 
ation were  subscribed,  as  required  by 
the  act,  and  indorsed  by  an  affidavit 
of  three  directors,  and  duly  filed  in 
the  office  of  the  secretary  of  state ; 
also  that  the  plaintiffs  had,  \inder 
their  organization,  constructed  the 
road  and  put  the  same  in  operation. 
Held  that  the  plaintifls  had  proved 
themselves  to  be  a  corporation.  Tlie 
Eastern  Plank  Road  Company  v. 
Vaughan,  156 

2.  The  defendant,  among  others,  signed 
a  paf)er  by  which  the  subscribers,  for 
value  received,  piomised  to  pay  B. 
and  W.  SilOO  for  each  share  by  them 
subscribed  for  the  purpose  of  build- 
ing a  certain  plank  road.  And  B.  and 
W.  were"  authorized  to  transfer  the 
subscriptions  to  a  com])any  thereafter 
to  be  formed  tor  the  purjjose  of  build- 
ing said  road.  The  defendant  took 
one  share.  Subsequently  articles  of 
association  were  adopted  and  signed 
by  subscribers  for  stock,  to  an  amount 
exceeding  the  sum  required  by  stat- 
ute, without  including  the  defendant ; 
and  the  organization  was  completed 
by  filing  the  articles  of  association, 
and  the  subscription  signed  by  the 
defendant  and  others  was  transferred 
to  the  company  by  B.  and  W.,  ana 
the  defendant's  name  was  subscribed 
to  the  books  by  them.  Held  1.  That 
the  subscription  of  the  defendant  was 
legal,  and  binding  ui)on  him ;  as  much 
so  as  if  he  had  subscribed  Lhe  articles 
of  association  with  his  own  hand. 
2.  That  the  subscrii)tion  was  legally 
traiisfened  to  the  plaintifls ;  and  thai 


IXDEX. 


697 


such  transfer  vested  in  them  the  title 
to  such  subscri[)tion,  and  the  author- 
ity to  collect  and  receive  the  moneys 
duo  or  to  become  due  under  it.  ?>. 
That  the  promise  of  the  defendant 
purporting;  to  have  been  made  for 
value  received,  this  was  prima  facie 
sufficient  evidence  of  a  consideration 
to  uphold  the  subscription.  4  That 
the  agreement  miglit  be  regarded 
an  an  offer  or  proposition  on  the 
part  of  the  subscril)ers  that,  {)rovided 
a  company  should  be  organized  to 
construct  the  [uank  road  mentioned, 
eacti  would  take  the  number  of  shares 
of  capital  stock,  therein,  by  them 
suhscrilje<l,  and  the  organization  of 
such  corporation  as  an  acceptance  of 
that  offer  or  proposition.  And  that 
such  promi.se  could  be  enforced,  be- 
cause it  induced  others  to  enter  into 
engagemt-nts,  assume  liabilities,  and 
incur  expense,  on  the  faith  of  such 
proposition.  ib 

3  By  the  articles  of  association  of  a 
plank  road  company,  executed  in 
September,  1850,  the  subscribers 
promised  to  pay  in  their  subscriptions 
as  called  for  by  the  directors,  not  ex- 
ceeding 25  per  cent  at  any  one  timt;. 
On  the  25th  of  March,  1851,  a  call  of 
13  per  cent  was  made,  payable  April 
15th,  and  calls  of  15  j)er  cent  each, 
payable  May  1st,  May  15tli,  and  June 
1st;  and  on  the  13th  of  June  a  call 
for  the  balance,  42  per  cent,  payable 
on  the  1st  of  July,  was  made;  notice 
of  which  calls  was  immediately  given 
to  the  defendant.  Held  1.  That  calls 
in  sums  not  exceedin;?  25  per  cent 
payable  at  any  one  time,  were  neces- 
sarj',  by  the  terms  of  the  defendant's 
agreenieiit,  before  any  liability  there- 
on accrued.  2.  That  the  39th  section 
of  the  plank  road  law  of  1847  had  no 
application  to  a  ^ommon  law  action, 
brought  to  recover  the  amount  of  the 
calls ;  and  tliat  30  days  previous  no- 
tice of  the  calls  was  not  requisite  to 
the  defendant's  liability  in  such  ac- 
tion. That  notice  is  necessary  only 
where  the  cumulative  remedy  of  for- 
feiture of  the  stock  is  souiiht.  8.  That 
the  call  for  the  first  four  installments 
was  a  compliance,  on  the  plaintiff's 
part,  with  the  defendant'"*  agi^eement 
to  pay ;  but  that  the  call  for  42  per 
cent,  being  for  a  sum  greater  than  he 
had  contracted  to  pay  at  any  one  time, 
imj)OStd  no  liability  on  him.  4  That 
the  defendant  had  a  right  to  waive  the 
call  for  iastallments  in  sums  not  ex- 
ceeding 25  per  cent ;  and  that  no  ob- 

Vol.  XX.  88 


jection  being  raised,  (iither  in  the  an- 
swer, or  on  the  trial,  to  the  plaintiff's 
right  to  recover,  on  that  ground,  the 
right  to  object  mu.st  be  deemed  to 
have  been  waived.  6.  That  it  wa.s 
not  requisite  that  the  5  ])er  cent 
should  be  paid  on  the  defendant's 
subsoiption,  to  make  it  valid  and 
binding  upon  him ;  the  corporation 
being  created  without  his  stock.       ih 

4.  The  second  section  of  the  act  of  1847 
only  requires  five  p'-T  cent  to  be  paid 
in  on  the  stock  relied  upon  as  a  basis 
to cieate  the  corporation.  ib 

5.  The  forfeiture  of  slock,  authorized  by 
the  3'Jth  section  of  that  act,  in  case 
of  non-payment  of  calls,  is  a  cumula- 
tive remedy,  and  can  only  be  pursued 
on  a  full  compliance  witli  the  require- 
ments of  the  act.  ib 

6.  Where  subscribers  agree  to  pay  the 
amount  of  their  subscriptions,  at  such 
times  and  in  such  manner  as  shall  be 
rcqtiired  bj-  the  board  of  directors,  as 
soon  as  the  boctrd  makes  the  reqitire- 

•  ment  the  obligations  of  the  subscri- 
bers become  operative,  without  the 
notice  of  thirty  days  mentioned  in  tlie 
39th  section  of  the  plank  road  act.  ib 

7.  That  notice  is  to  be  regarded  as  pre- 
liminary only  to  a  right  to  forfeit  the 
stock.  ib 

8.  Proof  tliat  a  plank  road  company 
has,  in  accordance  with  the  statute, 
been  duly  incorporated  and  organized, 
and  has  built  its  road,  and  procured 
the  same  to  be  inspected,  and  has 
erected  toll  gates  tiiereon,  and  is  in 
the  actual  use,  occupation  and  enjoy- 
ment of  the  road,  is  sufficient  to  enar- 
ble  the  company  to  maintain  an  action 
of  trespass,  for  an  entry  upon  the 
road,  against  any  7)ersons  who  do  not 
show  a  better  right  to  the  possession 
of  it  in  themsel  ves.  The  Ellicottville 
and  Great  Valley  Plank  Road  Co. 
V.  The  Buffalo  and  PiUsburgh  Rail 
Road  Company,  644 

9.  Since  the  act  of  1851,  in  relation  to 
rail  road  companies,.such  companies 
have  no  right  to  enter  upon,  occupy 
or  cross  a  turnpike  or  plank  road, 
without  the  consent  of  the  owners, 
except  upon  the  condition  of  first 
payins  the  damages  sustained  by  the 
turnpike  or  plank  road  company,  af- 
ter the  same  shall  have  been  as'-er- 
taincd  under  the  statute.  *i 


698 


INDEX. 


10.  Althoush,  by  the  5th  subdivision  of 
the  28th  section  of  the  general  rail 
road  act,  a  rail  road  company  is  em- 
powered to  construct  its  road  across, 
along  or  upon  any  stieam  of  water, 
water  course,  street,  highway,  plank 
road,  turnpike  or  canal,  which  the 
route  of  its  road  shall  intersect  or 
touch,  this  provision  is  to  be  constru- 
ed as  granting:  only  the  right  which 
the  public  had  in  such  streams,  plank 
roads,  turnpikes,  &c.  and  not  as  at- 
tempting to  grant  any  right  to  violate 
private  property  without  the  consent 
of  the  owners.  ib 


PLEADING. 

1.  Complaint. 

1.  When  one  party  agrees  to  sell  and 
deliver  gooils  at  a  particular  place, 
and  tlie  other  agrees  to  receive  and 
pay  for  them,  an  averment,  by  the 
purchaser,  of  a  readiness  and  will- 
ingness to  receive;  and  i)ay  at  that 
place,  in  case  he  sifes  for  a  non-de- 
livery, is  iiidispensal)ly  necessary  t» 
a  good  complaint.   Clark  v.  Dales,  42 

2.  But  the  omission  to  make  this  aver- 
ment is  a  defect  which  is  cured  by 
a  verdict.  ib 

2.  Answer. 

3.  A  complaint  alleged  that  the  plain- 
tiff, on  or  about  the  31st  <lay  of 
May,  1851,  was  lawfully  jiossessed, 
as  of  his  own  property,  of  one  large 
gold  English  lever  watch  of  the 
value,  &c.,and  that  tlie  plaintiff,  on 
or  about  the  time  above  stated,  did 
lend  said  watch,  without  any  con- 
sideration therefor,  to  the  defend- 
ant, for  the  space  of  four  days,  with 
the  promise  on  the  part  of  tiie 
defendant,  that  within  that  time 
said  watch  should  be  returned  to  the 
plaintiff,  its  rightful  owner.  It  then 
ciiarged  that  the  defendant  knew 
the  watch  was  the  ])r()perty  of  the 
plaintiff,  and  that  with  intent  to  de- 
fraud, &c.,  h«  had  not  delivered  it 
to  the  plaintiff,  &c.,  but  had  "con- 
verted and  disposed  of  it  to  the  de- 
fendant's use,"  &c.  Held,  1.  That 
the  allegation  that  the  watch  was 
lent  to  the  defendant,  by  the  plain- 
tiff, although  not  necessary  to  bi; 
made,  in  that  form,  was  a  material 
allegation,  for  the  j)urpose  of  con- 
uecting    the   defendant    with     the 


property,  so  as  to  lay  a  foundatton 

for  the  allegation  of  a  refusal  to  de- 
liver it,  on  request,  and  of  a  conver- 
sion ;  and  was  issuable.  2.  That  a 
denial,  in  the  answer,  that  the 
plaintiff,  "  on  or  about  tlie  31st  day 
of  May,  1851,  did  leave  such  watch 
as  aforesaid  with  the  defendant,  for 
any  period,  with  the  ])romise  of  this 
defendiuit  to  return  the  same  to  the 
j)laintiff,"  was  bad  pleading,  in  form; 
it  being  a  negative  pregnant;  but 
that  it  controverted  tlie  allegation 
as  to  the  lending  of  the  wiitch  to 
him,  and  put  it  in  issue,  within  th'J 
meaning  of  <^  168  of  the  code 
Tliat  it  was  an  informal  denial,  and 
unless  objection  was  made,  for  de- 
fect of  fiirm,  before  tiial,  it  would 
be  waived,  and  each  allegation 
would  be  regarded  as  controverted. 
3.  That  an  allegation,  in  the  answer^ 
that  the  defendant  was  "  not  in- 
formed "  and  could  "  not  state," 
whether  the  plaintiff  was,  at  the 
time  stated  in  the  comi)laint,  pos- 
sessed as  of  liis  own  jiroperty,  of 
the  watch,  was  not  warranted  by 
the  code.  4.  That  a  denial  of  all 
fraudulent  intent  on  the  part  of  the 
defendant,  "or  any  unlawful  con- 
version of  said  watch  to  liis  own 
use,"  formed  no  material  issue  in 
res[)ect  to  the  intent ;  and  that  the 
denial  of  any  unlawful  conversion 
was  not  intended  to  controvert  that 
the  defendant  actually  converted 
aTid  disposed  of  tlu;  property  to  his 
own  use,  but  simi)ly  the  unlawful- 
ness of  what  he  did.  5.  That  an 
averment,  in  the  answer,  of  a  sale 
and  delivery  of  the  watch  to  the 
defendant  was  not  inconsistent  with 
the  allegation  in  the  complaint,  of 
a  bailment,  and  therefore  a  denial 
of  it ;  it  not  appearing,  on  tiie  face 
of  the  pleadings,  tliat  tlie  sale  was 
not  subsequent  to  the  bailment. 
Elton  v.  Markham,  343 

4.  A  denial,  in  an  answer,  mu.st  bo 
general  or  specific,  or  it  must  be  of 
any  knowledge  or  information,  &c., 
sufficient  to  form  a  belief.  ii 

5.  A  defendant  who  makes  a  defense 
by  answer,  must,  bedsides  answering 
the  j)laintiff's  case  as  made  by  the 
com[)laint,  state  in  hisanswei-  every 
matter  of  defense  of  which  he  in- 
triids  to  avail  himself.  New  York 
Central  Insurance  Co.  v.  The  Na- 
tional Protection  Ins.  Co  468 


INDEX. 


699 


3.  Dt-murrer. 


6  Where  a  demurrer  is  to  the  whole 
;omplalnt,  if  one  of  the  plaintiffs 
night  have  judgment  separately,  it 
is  bad.  Peahody  v.  Washington 
County  Mu.  Ins.  Co  339 

J  A  demurrer  must  be  sustained  or 
fail  to  the  whole  extent  to  which  it 
is  applied.  ih 

8.  A  demurrer  will  not  lie  for  a  mis- 
joinder of  parties.  ih 

9.  The  defect  of  parties  for  which  a 
demurrer  is  allowed,  under  §  344  of 
the  code,  is  a  deficiency  of,  and  not 
too  many,  parties.  ib 

Sec  Joinder  of  Cr.AiMs. 

Rail  Road  Companies,  9,  11. 


POSSESSION. 
See  Title  to  Land. 

PRESUMPTION. 
See  Trusts  and  Trustees,  7,  8,  9. 

PRINCIPAL  AND  AGENT. 

1.  It  is  a  general  rule  that  whatever  is 
known  to  an  agent  must  be  presum- 
ed to  be  known  to  the  principal. 
New  York  Central  Ins.  Co.  v.  The 
National  Protection  Ins.  Co.      468 

2.  But  it  seems  this  rule  is  confined  to 
tliat  class  of  cases  where  the  knowl- 
edge of  the  fact  comes  to  the  aj;ent 
wliile  he  is  acting  for  his  principal, 
in  the  course  of  the  very  transaction 
which  becomes  the  subject  of  the 
suit.  tl> 

8.  A  principal  is  liable  for  the  fraud  or 
misconduct  of  his  agent :  and  he  not 
only  cannot  take  any  benefit  from  a 
misrepiesentation,  fraudulently  made 
by  the  agent,  but  is  bound  to  make 
compensation  for  injuries  sustained 
by  oth6i-s,  therebj'.  And  this,  although 
the  principal  maybe  innocent;  pro- 
vided the  agent  acted  within  tlie 
scope  of  his  authoiity.  Hvnter  v. 
Tlie  Hudson  River  Iron  and  Ma- 
chine Co.  493 


4.  There  need  not  be  express  authority 
to  make  a  particular  representation, 
but  the  authority  may  be  implied,  as 
incident  to  a  general  authority.        ib 

5.  A  general  authority  to  an  agent  to 
purchase  goods  on  credit,  is  an  au- 
thority to  make  the  necessary  repre- 
sentations as  to  the  credit  and  solven- 
cy of  his  principal.  Such  authority 
is  necessarily  incident  to  the  power  to 
purchase  on  credit.  ib 

6.  And  declarations  made  by  the  agent, 
while  applying  for  goods  on  credit, 
as  to  the  credit  and  solvency  of  his 
principal,  are  part  of  the  res  gestee, 
and  are  equally  obligatory  upon  the 
principal  as  if  made  t)y  himself      ib 

7.  In  such  a  case,  even  if  the  principal 
does  not  know,  at  the  time,  that  the 
representations  of  his  auent  arc  false, 
he  is  liable  to  the  vendor,  upon  the 
principle  that  of  two  innocent  jjarties 
the  one  shall  suffer  who,  by  his  agent 
causes  the  injury.  ib 

See  Vendor  and  Purchaser,  11. 


PROHIBITORY    LIQUOR   LAW  OF 
APRIL  9,  1855. 

1.  Validity  and  Canstitutionaliiy. 

1.  So  much  of  the  1st  section  of  tho 
act  of  the  legislature  entitled  "  An 
act  for  the  prevention  of  intemjier- 
ance,  pauperism  and  crime,"  passed 
A})ril  9,  1855,  as  declares  that  in- 
toxicating liquors  shall  not  be  sold 
or  kept  for  sale,  or  with  intent  to 
be  sold,  except  by  the  persons  and 
for  the  si)ecial  uses  mentioned  in 
the  act ;  so  much  of  sections  6, 
7,  10  and  12  as  provide  for  its  seiz- 
ure, forfeiture  and  destruction;  so 
much  of  the  16th  section  as  de- 
clares that  no  person  shall  maintain 
an  action  to  recover  the  value  of 
any  liquor  sold  or  kept  by  him 
which  shall  be  jmrcliased,  taken, 
detained,  or  injured,  nnless  l)e  provo 
that  the  same  was  sold  according 
to  the  provisions  of  the  act,  or  was 
lawfully  kept  and  owned  by  him ; 
so  mucli  of  section  17  as  declare* 
that  upon  the  trial  of  any  complaint 
under  the  act,  proof  of  delivery 
sliall  be  proof  of  sale,  and  proof  of 
sale  shall  be  sufHcieni  to  sustain  an 
averment  of  unlawful  s.ile ;  and  so 
much  of  section  25  as  declares  that 


700 


INDEX. 


intoxicating  liquor  kept  in  violation 
of  any  of  the  provisions  of  tiie  act, 
shall  bo  deemed  to  be  a  public  nui- 
sance— are  rej)Uffnant  to  the  provis- 
ions of  tlie  constitution  for  the  pro- 
tection of  liberty  and  property,  and 
are  absolutely  void.  Rockwri.l,  J., 
dissented.     The  People  v.  Toynhce, 

168 

2.  The  last  clause  of  section  one  of  the 
act  of  April  9,  1855,  for  the  preven- 
tion of  intemperance,  pauperism  and 
crime,  excejiting  from  the  operation 
of  that  section  liquor,  the  right  to 
sell  which  '■  is  given  by  any  law  en- 
treaty of  the  United  States,"  does  not 
apply  to  liquor  in  the  possession  of 
a  {Kjrson  who  has  purchased  the 
same  from  the  importer,  in  the  origi- 
nal packages,  and  who  retails  the 
same  fiom  those  packages,  as  it  is 
called  for.  Wynhamer  v.  The  Peo- 
ple, 567 

3.  The  selling  of  imported  liquor,  by 
any  person  other  than  the  importer, 
and  such  others  as  are  allowed  to  sell, 
by  the  act,  is  therefore  prohibited  by 
the  first  section  as  qualified  by  the 
second  and  other  sections  of  the  stat- 
ute. And  upon  the  trial  of  an  indict- 
ment, under  the  act,  evidence  by  the 
defendant  to  show  that  the  liquor  sold 
by  him  was  imported  by  another,  from 
foreign  countries,  under  the  revenue 
laws  of  the  United  States ;  that  the 
duties  have  been  paid  tliereon  ;  that 
he  purchased  the  same  from  the  im- 
porter, in  the  packages  in  which  it 
was  imported  ;  and  that  it  was  drawn 
from  those  packages  when  sold  by 
him,  is  immaterial,  and  should  be  re- 
jected, ib 

4.  The  right  to  sell  imported  liquor, 
given  by  the  laws  of  the  United 
States,  is  suljject  to  two  important 
qualifications;  1.  That  it  remains  in 
the  hands. of  the  importer;  and  2. 
That  it  shall  lie  sold  in  the  condition 
in  which  its  importation  isauthoi'ized, 
and  that  all  sales  by  other  persons,  or 
in  any  other  quantity  or  condition  than 
that  in  which  it  is  imported,  are  sub- 
ject, like  the  sales  of  all  other  prop- 
erty, to  such  regulations  as  may  be 
prescribed  by  state  laws.  ib 

5.  The  right  is  neither  general  as  to 
persons,  nor  in  its  application  to  the 
property  to  which  the  laws  of  the 
United  States  relate.  The  right,  on 
tlie  contrary,   is  limited   to   certain 


persons,  and  qualified  by  tlio  status 
of  the  property.  ih 

6.  AVhile  it  is  in  the  hands  of  the  im- 
porter, and  in  the  condition  in  which 
it  was  imported,  the  laws  under 
which  he  has  imported  it  give  him 
a  right  to  sell  it  in  that  condition. 
This  is  the  extent  of  the  right.  When 
he  parts  with  the  property,  or 
changes  its  condition,  his  right,  and 
all  right  to  sell  it,  derived  from 
those  laws,  ceases.  It  is  no  longer 
the  right  to  sell  which  is  given  by 
the  laws  of  the  United  States.  ib 

7.  The  prohibition  of  the  .sale  of  liquor, 
contained  in  the  first  section  of  the 
act  for  the  i)revention  of  intemper- 
ance, pauperism  and  crime,  passed 
April  9, 1855.  as  it  is  qualified  by  the 
second  and  other  sections,  is  not  re- 
pugnant to  the  provisions  of  the  con- 
stitution, but  is  a  valid  legislative 
act.  ib 

2.  Bail ;  trial  of  accust^d  before  courts 
of  special  sessions. 

8.  Where  an  individual  is  biought  be- 
fore a  magistrate,  upon  a  warrant 
issued  i'or  a  violation  of  the  act  of 
April  9,  1855,  "  for  the  prevention 
of  intemperance,  })nuperism  and 
crime,"  the  magistrate  should,  take 
his  examination ;  and  if,  upon  such 
examination,  it  appears  that  no  of- 
fense has  been  committed,  or  that 
there  is  no  probable  cause  for  charg- 
ing the  accused  therewith,  he  should 
be  dischareed.  If  there  is  probable 
cause  to  bi'lieve  the  defendant  guilty, 
bail  should  be  taken,  if  offered  by  the 
defendant,  for  his  appearance  at  the 
next  court  having  cognizance  of  the 
offense.     IVie  People  v.  Berberrich, 

221 

9.  The  legislature  rljd  not  intend,  by 
that  act,  to  extend  the  jurisdiction 
of  courts  of  special  sessions  so  far 
as  to  compel  persons  accused  of  of- 
fenses against  the  act,  to  submit  to  a 
trial  before  that  tribunal  in  cases 
where  the  accused  should  offer  bail 
for  their  appearance  at  the  next  court 
of  sessions,  or  oyer  and  terminer,  at 
all  events.  ib 

10.  The  5th  section  of  the  "act  for  the 
prevention  of  intemperance,  pauf)er- 
i.sm  and  crime,"  jiassed  A[»ril  9th, 
1855,  does  not,  either  in  terms  or  by 
just  or  fkir   implication,  restrict  the 


INDEX. 


701 


|)ower  of  courts  of  special  sessions, 
in  resi>«!ct  to  offenses  under  that  act, 
to  cases  where  the  party  charged 
either  requests  to  be  tried  by  such 
court  or  omits  to  give  bail.  On  the 
contrary,  it  seems  to  contemplate  that 
the  justice  or  other  officer  before 
whom  the  accused  shall  be  brought 
by  virtue  of  the  process,  shall  pro- 
ceed at  once  to  the  trial  of  the  charge. 
The  People  ex  rcl.  Booth  v.  Fisher, 

625 

11.  Not  only  is  the  power  conferred  up- 
on the  magistrate  to  try  the  accused, 
but  he  is  imi)eratively  required  to 
hold  a  court  of  special  sessions,  and 
proceed  to  the  trial  as  soon  as  the 
complainant  can  be  notified.  Neither 
his  power,  or  his  duty  to  try,  are 
made  to  depend  upon  the  defendant's 
request  to  be  tried,  his  omission  to 

'  give  bail,  or  any  other  condition,     ib 

12.  The  magistrate  may  therefore  pro- 
ceed to  the  trial  of  the  accused,  not- 
withstanding the  latter  offers  to  give 
bail  for  his  ai»pearance  at  ^the  ne.xt 
criminal  court  having  cognizance  of 
the  oflfense.  ib 

13.  Section  2  of  article  1  of  the  con- 
stitution, which  declares  that  "  The  j 
trial  by  jury,  iij  all  cases  in  which  it  | 
lias  been  heretofore  used,  shall  remain  j 
inviolate  forever,"  was  not  intended  I 
to  apply  to  such  a  case.  ib 

14.  The  expression  "the  trial  by  jury," 
as  used  in  that  section,  refers  as  well 
to  all  other  incidents  of  the  trial  as 
to  the  number  of  men  necessary  to 
constitute  the  jury ;  and  means  such 
a  trial  as  is  contemplated  by  section 
6  of  article  1  of  the  constitution,  for 
persons  charged  with  capital  or  other- 
wis3  infamous  offenses;  which  must 
be  upon  presentment  or  indictment  of 
a  grand  jury,  and  in  a  court  of  record 
w^ith  common  law  jurisdiction.        ib 

15.  All  offenses  which  are  not  capital 
or  otherwise  infamous  crimes,  are 
left  under  the  reculation  of  the  leg- 
islature,  in  regard  to  trial  by  jury. 

ib 


R 


Q 

QUO  WARRANTO. 
See  Mandamus,  1. 


RAIL  ROAD  COMPANIES. 

1.  Actions  against,  for  personal  irir- 
juries. 

1.  In  an  action  against  a  rail  road 
company,  to  recover  damages  for  an 
injury  sustained  by  a  passenger  by 
means  of  a  collision,  it  is  not  errone- 
ous for  the  court  to  charge  the  jury 
that,  in  ascertaining  the  amount  of 
the  plaintiff's  damages,  it  is  proper 
for  them  to  consider  the  bodily  pain 
and  sufiuring  which  has  occurred, 
or  is  likely  to  occur,  in  consequence 
of  the  injury,  but  that  they  cannot 
act  upon  conjecture  as  to  the  pros- 
pective condition  or  situation  of  the 
plaintiff;  and  that  the  jury  can  only 
consider,  in  respect  to  the  future 
what  the  evidence  renders  reason- 
ably certain  will  necessarily  and  in- 
evitably result  from  the  original  in- 
jury. Curtissv.  The  Rochester  and 
Syracuse  Rail  Road  Co.  282 

2.  Bodily  i)ain  and  suffering  which  is 
necessarily  and  directly  to  flow  from 
the  injury,  is  as  much  a  jjart  of  the 
injury  as  the  continuance  of  a  phys- 
ical disability  occasioned  by  it.     26 

3.  Osly  one  action  can  be  maintained 
to  recover  damages  for  a  personal 
injury.  Yet  it  is  not  necessary  for 
the  injured  person  to  wait  ui\til  all 
the  consequences  of  the  injury  have 
become  fully  developed.  He  is  en- 
titled to  sue  whenever  he  thinks 
proper,  and  to  recover  damages  for 
both  past  and  future  pain  of  body, 
as  well  as  for  j)ast  and  future  dep- 
rivation of  health,  or  of  any  of  his 
bodily  powers.  ib 

4.  But  in  respect  to  all  the  subjects  of 
damage,  it  is  requisite  that  they 
should  be  legal,  direct  aud  neces- 
sary results  of  the  injury,  and  that 
those  which,  at  the  time  of  the 
trial,  are  prospective,  should  not  be 
conjectural.  ib 

5.  Damages  arising  from  bodilj'  pain 
and  suffering  need  not  be  alleged 
specially  in  the  complaint.  ib 

6.  Where  it  appeared,  from  the  evi- 
dence, that  the  cars  were  thrown  off 
the  track  of  a  rail  road,  and  a  col 
lision  therebv  occasioned,  because 


702 


INDEX. 


Ihe  rails  were  not  right,  or  from 
some  defect  in  the  mode  of  securing 
them  in  their  place ;  Held  that  the 
degree  of  care  which  the  law  im- 
posed on  the  rail  road  company  re- 
quired them  to  see  that  the  rails 
were  in  a  right  position,  and  not  to 
trust  exclusively  to  the  lever  of  the 
switch,  when  the  rails  were  in  open 
view  while  moving  it;  and  also  to 
see  that  the  rails  were  firmly  se- 
cured ;  and  that  if' they  omitted  to 
do  so  they  were  guilty  of  negli- 
gence, if) 

7.  It  was  therefore  held,  further,  that 
the  question  of  negligence  was 
proi)erly  submitted  to  the  jury,     ih 

8-  Also  held,  that  proof,  uncontradict- 
ed, that  the  switch  was  rightly 
placed,  did  not  rebut  all  presump- 
tion of  negligence.  ih 

9.  Wheie,  in  an  action  against  a  rail 
road  company,  the  complaint,  after 
statin<r  that  the  defendants  were  an 
oi'sanized  company  and  the  owners 
of  the  road,  and  were  running  it, 
averred  that  on  &c.,  while  they  were 
so  running  the  road,  the  plaintiff's 
intestate  was  in  the  employ  of  the 
defendants,  as  an  engineer  upon  their 
locomotive,  while  it  was  in  their  use 
and  service:  Held  that  this  was  a 
sufficient  allegation  to  show  that  the 
relation  of  master  and  servant  ex- 
isted l)etween  the  parties.  McMillan 
V.  Saratoga  and  Washington  Rail 
Road  Co.  449 

10.  But  no  special  contract  between  the 
principal  and  agent  is  to  be  inferred 
from  such  an  allegation.  ib 

11.  Where  a  comy)laint  alleged  that  W. 
S.  M.,  the  plaintiflT's  intestate,  was 
in  the  defendants'  employ  as  engineer 
upon  a  locomotive  used  and  running 
upon  their  rail  road  ;  that  it  was  the 
duty  of  the  defendants  to  provide  a 
good,  safe  and  secure  locomotive  &c., 
and  a  good,  safe  and  secure  track,  and 
to  keep  tlie  same  in  good  repair,  and 
to  build,  maintain  and  keep  in  good 
repair  all  necessary  bridges,  fences 
and  cattle-auards,  but  that  they,  not 
regarding  their  duty,  wrongfully  and 
negligently  provided,  used  and  suf- 
eral  to  lie  used,  an  unsafe,  defective 
and  insecure  locomotive,  and  failed 
and  refused  to  provide  a  good,  safe 
and  secure  track  and  road,  or  to  keep 


the  road  in  good  repair,  and  neg- 
lected  to  build,  maintain  and  keep  in 
good  lepair  all  necessary  bridges, 
fences  and  cattle- guards ;  that  throuah 
a  defect  in  the  fence  which  it  was 
the  duty  of  the  defendants  to  main- 
tiiin  and  kcej)  in  good  repair,  a  horse 
got  upon  the  track  from  an  adjoining 
lot,  without  any  fault  of  W.  S.  M., 
and  in  consequence  of  the  defend- 
ants' neglect  to  provide  proper  cattle- 
guards,  ran  over  the  road  until  he 
came  to  a  bridge,  where  the  locomo- 
tive struck  the  horse ;  and  the  lo- 
comotive was  thrown  off  the  track 
and  W.  S.  M.  was  killed ;  it  was 
held,  on  demurrer,  that  the  com- 
plaint was  defective,  in  not  averring 
actual  notice  to  the  defendants,  of 
the  defects  occasioning  the  injury, 
or  some  of  thcin.  ih 

2.  Duty  and  rights  q/  erttjineers. 

12.  It  is  the  duty  of  an  engi.ieer,  em- 
ployed in  running  a  locomotive  upon 
a  rail  road,  and  it  is  confidevl  to  him 
by  his  employers,  to  guard  against  all 
accidents  liable  to  happen  by  the  es- 
cape of  horses  or  other  animals,  upon 
the  track,  through  a  defect  of  fences, 
or  otherwise.  Hence  he  is  bound  to 
make  known  to  the  rail  road  compa 
ny  any  defects  of  that  nature  which 
may  exist.  So  in  respect  to  any  de- 
fects in  the  locomotive.  And  for  not 
making  them  known  he  is  responsible 
to  the  public  as  well  as  the  company. 
McMillan  v.  Saratoga  and  Wash' 
ington  Rail  Road  Company,       449 

13.  He  may  require  special  indemnity 
against  all  risks,  or  he  may  give  no- 
tice to  the  company  and  throw  the 
risk  upon  them.  ih 

3.  Proceedings  to  acquire  title  to  land. 

14.  The  existence  of  a  mortgage  which 
is  a  lien  upon  land  taken  and  used 
by  a  rail  road  company  for  the  pur- 
pose of  constructing  and  operating 
its  road,  is  one  of  the  defects  in  the 
title  to  such  land,  cont,emp]at,ed  in  the 
21st  section  of  the  general  rail  road 
act  of  1850,  so  a-s  to  authorize  such 
company  to  proceed  arew  to  acquire 
a  valid  title,  in  the  same  manner  as 
if  no  appraisal  had  heen  previously 
made,  nor  any  attem))t  to  piocure  the 
title  by  agreement  and  jjurchase. 
1)1  the  matter  of  the  New  York  Cen- 
tral Rail  Road  Company,  419 


KfDEX. 


703 


15.  The  company  is  not  obliged  to  wait 
until  the  mortgaged  premises  are  sold 
under  a  decree  of  foreclosure ;  but  on 
discovering  the  existence  of  the  in- 
cumbrance, they  may  proceed  imme- 
diately, and  on  complying  with  all 
the  provisions  of  the  act,  may  have 
the  lien  extinguished,  as  to  the  land 
occupied  bj'  them.  ib 

See  Master  and  Srrvant. 
Plank  Roads,  9, 10. 


RECEIPT. 

See  Custom. 

REDEMPTION. 

See  Debtor  and  Creditor,  6. 

REPORT  OF  REFEREE. 

1.  Section  272  of  the  code  does  not  re- 
quire a  referee  formally  to  report  on 
all  the  issues  formed  by  the  plead- 
ings. If  there  are  issues  upon  which 
no  evidence  is  given,  he  need  not  no- 
tice them  in  his  report;  it  seems. 
Ingraham  v.  Gilbert^  151 

2.  An  objection  to  the  report,  on  that 
ground,  is  not  available  on  apfjeal 
from  the  judgment  entered  upon  the 
report.  If  a  pai-ty  is  dissatislied  with 
the  report  of  a  referee,  his  remedy  is 
by  si)ecial  motion  to  set  aside  or  cor- 
rect the  same.  ib 

s 

SALE  OF  CHATTELS. 

See  Agreement,  2,  3. 

SAVINGS  BANKS. 

J .  Where  moneys  deposited  with  the 
Knickerbocker  Savings  Institution, 
were  loaned  by  such  institution  to 
the  defendant,  upon  his  promissory 
note,  payable  on  demand,  secured 
by  the  hypothecation  of  32  shares 
of  the  ca[)ital  stock  of  the  Knicker- 
bocker Bank  ;  it  was  held  that  the 
note  was  not  a  violation  c*"  the  char- 


ter of  the  savings  institution,  nor  of 
the  act  of  April  15,  1853,  relative 
to  savings  banks  in  the  city  and 
county  of  New  York  and  the  county 
of  Kings.  (Laws  of  1851,  ch.  100; 
of  1853,  ch.  257.)  United  Spates 
Trust  Co.  V.Brady,  119 

2.  The  6th  section  of  the  act  of  1853 
was  intended  to  be,  and  is,  only  a 
})rohibition  against  the  loaning  of 
the  funds  of  savings  institutions  on 
mere  personal  securities.  ib 

3.  A  loan,  when  the  note  of  the  bor- 
rower, payable  on  demand,  istakan, 
is  not  a  loan  on  the  security  of  that 
note.  The  note  is  only  evidence  of 
the  debt.  If  stock  is  hypothecated 
to  secure  the  payment  of  the  note, 
the  loan  will  be  deemed  to  have 
been  made  upon  the  stock.  ib 


SET-OFF. 

In  an  action  against  several  defend- 
ants who  are  jointly  and  severally 
liable,  either  of  them  may  set  off 
promissory  notes  executed  by  the 
plaintiff,  or  may  avail  himself  there- 
of by  way  of  counter-claim.  Briggs 
V.  Briggs,  477 


SHIPS  AND  SHIPPING. 

1.  In  an  action  against  several  peraons, 
as  joint  owners  of  a  vessel,  for  sup- 
plies furnished  for  the  vessel,  proof 
by  the  plaintifl's  that  tlie  sujjplies 
were  delivered  on  board  the  vessel, 
that  they  rendered  a  bill  thereof  to 
B.  one  of  the  joint  owners,  that  it 
was  last  seen  in  his  possession  and 
that  it  had  been  inspected  by  the 
other  joint  owners,  is  sufficient,  after 
proving  service  of  the  ustial  notice 
on  B.  to  produce  the  bill,  and  his 
failure  to  do  so,  to  authorize  parol 
evidence  to  be  given  of  its  contents. 
King  v.  Lowry,  632 

%.  Joint  owners  of  a  vessel  are  primari- 
ly liable,  at  all  events  for  supplies 
furin'shed  in  the  port  to  which  she 
belongs,  whether  all  the  owners  are 
in  such  jjlace  or  not.  Prima  facie 
their  liability  is  identical  with  that  of 
persons  in  the  relation  of  copartners, 
as  joint  contractors.  ib 

3.  But  if  any  one  of  the  owners  arro- 
gates to  himself  the  control,  to  th» 


704 


INDEX. 


exclusion,  and  against  the  wishes,  of 
the  others,  and  this  assumption  is 
known  to  the  persons  furnishing  the 
supplies,  thus  showing  that  they  act 
in  collusion  with  the  usurping  own- 
er, it  seems  the  others  are  not  liable. 

ib 

i.  The  mere  acceptance  by  the  credit- 
ors, of  a  note,  from  one  of  the  own- 
ers, is  no  .proof,  in  itself,  that  the 
credit  was  given  exclusively  to  him. 
Nor  will  it  release  the  other  owners, 
in  the  absence  of  proof  that  the  note 
was  taken  as  payment,  and  with  the 
intent  to  discharge  the  other  owners. 

ih 

5.  In  an  action  against  L.,  J.  &  B.,  as 
joint  owners  of  a  vessel,  for  supplies 
furnished  for  the  vessel,  at  the  re- 
quest of  B.,  proof  by  L.  and  J.  that 
13.  at  the  time  the  debt  was  contract- 
ed, not  only  acted  in  hostility  to  them 
and  their  interests,  but  took  exclu- 
sive possession  and  control  of  the 
vessel,  undertaking  a  voyage  in  ex- 
press contravention  of  the  wishes  of 
the  other  owners,  and  that  the  plain- 
tiffs knew  this,  is  admissible.  ib 

6  But  the  mere  hostility  of  B.  to  the 
otlier  owners,  in  relation  to  the  vessel 
and  their  interests  in  it,  is  not  rel- 
evant, unless  it  also  appears  that 
he  usurped  exclusive  control  over  the 
vessel,  and  undertook  a  voyage  with 
her  in  direct  opposition  to  them,  and 
that  the  plaintiffs  were  aware  of 
that  fact,  and  acted  collusively  with 
him.  ib 


SPECIAL  SESSIONS. 
See  Prohibitory  Liquor  Law,  8  to  15. 

SUBPCENA. 

I.  Where  a  person  goes  to  the  house 
of  another,  for  the  purpose  of  serv- 
ing a  subpoena  upon  him,  and  the 
latter  is  in  the  house  at  the  time, 
these  circumstances  amount  to  a 
legal  license  to  enter;  and  if  the 
person  having  the  process  finds  the 
outer  door  open,  and  enters  j)eace- 
ably,  he  is  lawfully  there,  and  may 
use  such  force  as  is  necessary  to  over- 
come any  resistance  he  may  meet 
with  in  the  service  of  the  subpoena  ; 
being  liable  only  for   an  excess  of 


violence,  beyond  what  is  neccssdry 
to  overcome  the  resistance.  Hooer 
V.  Danforth,  16 

2.  The  fact  that  the  person  having  the 
process  is  ordered  by  the  wife  of 
the  party  sought  to  be  served,  to 
leave  the  iionse,  will  not  render 
him  a  trespasser  in  proceeding  to 
serve  the  subpoena.  ih 


SURROGATE. 

See  Executors  and  Administrator*, 
2,  3,  4,  5,  7. 


T 


TAXES  AND  TAXATION. 

See  Common  Schools. 

Mutual  Life  Insurance  Gomp; 

NIES. 


TENDER. 

A  strictly  legal  tender  may  be  waived 
by  an  absolute  refusal  to  receive, 
the  money,  or  do  the  act  required 
This  is  upon  the  principle  that  no 
man  is  bound  to  perform  a  nuga- 
tory act.     Stone  v.  Sprague,       5'>9 

See  Vendor  and  Purchaser,  3. 


TITLE  TO  LAND. 

1.  In  an  action  to  recover  damages 
for  the  diversion  of  water  from 
land,  of  which  the  jilaintiff  alleges 
he  is  the  owner  and  in  the  posses- 
sion, the  act  done  being  above  his 
land  and  the  injury  consequential, 
it  is  not  necessary  for  the  ])iaintiff 
to  prove,  in  regard  to  his  right  or 
interest,  any  thing  further  than  that 
he  was  in  possession  of  the  prem- 
ises at  the  time  of  the  injury. 
Rathbone  V- McCoiinell,  311 

2.  The  party  In  possession  is  the  prop- 
er person  to  bring  such  an  action,  ih 

3.  The  owner,  if  not  in  possession, 
cannot  maintain  an  action,  except 
for  an  injury  to  his  reversionary  in- 


INDEX. 


705 


terest,  and  under  a  complaint  pre- 
senting such  a  case,  ih 

See  Costs. 


TRESPASS. 

1.  Trespass  cannot  be  maintained  by 
tlie  owner  of  goods,  against  a 
sheriff,  for  taking  them  under  and 
pursuant  to  a  writ  of  replevin 
against  another  person  having  the 
goods  in  possession.  Johnson,  J., 
dissented.     Foster  v.  Pettibone,  350 

2.  The  law  fully  recognizes  the  own- 
er's right,  and  if  he  can,  without 
force,  obtain  the  property,  will  not 
hold  him  a  wrongdoer  for  taking 
it;lmt  it  withholds  from  him  an 
affirmative  remedy  by  action  against 
a  ministerial  officer;  allowing  him 
an  action  only  against  other  per- 
sons concerned  in,  or  who  instigat- 
ed, the  taking.  H 

3.  Where  cows,  belonging  to  several 
owners,  are  found  in  the  garden  of  an 
individual,  committing  a  trespass, 
each  owner  is  liable  for  the  damage 
done  by  his  own  cow  and  for  no  more. 
PaHenheimer  v.  Van  Order,      479 

4.  And  in  the  absence  of  all  proof  as 
to  the  amount  of  damage  done  by 
each  cow,  the  law  will  infer  that  the 
cattle  did  equal  damage.  ih 

See  SuBPCEKA. 


TRIAL. 

1.  Where  one  party  agrees  to  sell  and 
deliver  goods  at  a  particular  place, 
and  the  other  agrees  to  receive  and 
pay  for  them,  an  averment  by  the 
purchaser,  of  a  readiness  and  willing- 
ness to  receive  and  pay  at  tliat  place. 
in  case  he  sues,  for  a  non-delivery, 
is  indispensably  necessary  to  a  good 
complaint.  But  if  the  complaint 
omits  to  make  thataverment,  the  fact 
omitted  to  be  averred  will,  on  appeal 
from  the  judgment  rendered  at  the 
circuit,  be  presumed  to  have  been 
proved  ;  inasmuch  as  a  readiness 
and  willingness  to  perform  could  not 
be  proved,  so  as  to  authorize  a  ver- 
dict for  .the  plaintiffs,  without  also 
proving  a  readiness  and  willingness 
to  do  so  at  the  place.  Clark  v. 
Dales,  42 

;^VoL.  XX.'  89 


2.  This  is  not  such  a  case  of  variance 
between  the  complaint  and  thu  facts 
found  or  proved  as  will  be  deemed 
to  affect  the  substantial  rights  of 
the  parties.  ib 

3.  A  single  exception  to  a  series  of 
decisions,  one  of  which  decisions  L 
correct,  is  unavailing.  Elton  v 
Markham,  34c 

4.  Where  an  objection  to  testimony  i* 
taken,  on  the  trial,  on  a  specific 
ground,  and  in  such  a  manner  as  tc 
induce  the  opposite  party  to  believe 
that  such  is  the  sole  ground,  the 
party  objecting  will  not  be  allowed, 
on  appeal,  to  place  his  objection 
upon  a  different  ground  and  one 
wiiich,  if  it  had  been  urged  at  the 
trial,  might  have  been  obviated 
Briggs  v.  Smith,  409 


TROVER. 

.  In  an  action  commenced  under  sec 
tions  206,  &c.  of  the  code,  for  the 
claim  and  delivery  of  personal  prop- 
erty, where  the  complaint  is  in  the 
form  of  the  old  declaration  in  re- 
plevin in  the  detinet,  and  charges 
that  the  defendants  have  become  pos- 
ses.sefl  of,  and  wrongfully  detain  the 
goods  and  chattels,  and  the  plain- 
tiffs proceed  upon  the  ground  that  the 
title  to  the  goods  was  never  changed, 
but  remained  in  them,  because  the 
same  were  purchased  of  the  plaintiffs, 
and  the  delivery  thereof  procured, 
through  the  false  representations  of 
the  vendees  as  to  their  solvency  and 
credit,  proof  of  the  purchase  of  the 
goods  by  the  agent  of  the  defendants, 
by  their  diicction,  and  that  at  that 
time  the  defendants  were  insolvent,  is 
competent  evidence,  on  the  question 
of  fraud.  Hunter  v.  The  Hudson 
River  Iron  and  Machine  Co.       493 

.  In  such  an  action  it  is  not  necessarv 
the  complaint  should  aver  a  demand 
of  the  goods;  or  that  it  should  con- 
tain an  allegation  of  the  insolvencj' 
of  the  defendants,  or  of  any  of  the 
facts  going  to  establish  the  fraud,  ib 

.  It  is  sufficient  if  it  is  in  the  form  of 
the  old  declaration  in  replevin  in  the 
detinet,  and  charges  that  tlie  defend- 
ants have  become  pos.'^essed  of)  and 
wrongfully  detain,  the  goods  and 
chattels  in  question.  t6 


706 


INDEX. 


TRUSTS  AND  TRUSTEES. 

1.  Construction  and  validity  of  ii'usts. 

1.  T.  conveyed  his  property  to  R.  by 
deed,  in  trust  to  receive  the  income 
and  apply  it,  first,  to  the  payment  of 
his  existiniT  debts,  and  secondly,  to 
the  use  of  his  wife  and  children  during 
his  life;  and  on  his  death,  to  convey 
the  fee  or  capital  to  his  children  then 
in  being.  Held  that  although  the 
absolute  power  of  alienation  was  sus- 
pended, both  by  the  nature  of  the 
trust  and  by  tlie  contingent  remainder 
in  favor  of  unborn  children,  yet  the 
suspension  from  either  cause  could  by 
no  possibility  continue  longer  than 
one  designated  life  in  being,  and  was 
therefore  not  contrary  to  the  statute. 
Rogers  v.  Tilley,  639 

2.  A  trust  to  receive  rents  and  profits, 
and  apply  them  to  the  payment  of 
debts,  may  be  satisfied  by  a  sale  of 
the  premises  for  a  term  of  years,  tak- 
ing the  whole  rent  in  advance  and 
discharging  the  debts;  and  such  a 
sale  is  not  contrary  to  the  statute,    ib 

8.  An  ajjplication  of  rents  and  profits, 
by  way  of  trust,  to  the  use  of  a  man's 
familVj  is  an  application  of  them  to 
his  use.  and  if  confined  to  the  })eriod 
of  his  life,  and  to  a  living,  designated 
individual,  is  not  contrary  to  the  stat- 
ute, ib 

4.  Even  if  this  were  not  so,  and  the  use 
were  to  be  considered  as  exclusively 
that  of  the  wife  and  children,  as  it  is 
only,  in  any  event,  for  their  lives,  and 
cannot  possibly  last  longer  than  the 
life  of  the  father,  which  may  be  a 
shorter  period,  it  is  not  contrary  to 
the  statute.  ib 

6.  If  any  of  the  trusts  in  a  deed  are 
valid,  the  deed  is  not  void.  A  single 
good  trust  is  sufficient  to  sustain  it.  ib 

6.  A  trust  in  favor  of  two  named  chil- 
dren of  the  grantor  and  his  wife,  al- 
ready born,  "  and  such  as  may  he 
born  of  the  lawful  issue  of"  the  gran- 
tor and  his  wife,  means  the  existing 
children,  and  such,  if  any,  as  shall  be 
afterwards  born,  being  lawful  issue  of 
the  grantor  and  his  wife.  ib 

2.  Resulting  trusts. 

7.  The  presumption  that  he  who  sup- 
plies the  money  to  make  a  purchase 
inteiids  it  for  his  own  benefit,  rather 


tlian  that  of  another,  does  net  applj 
in  cases,  like  that  of  parent  and  child 
or  husband  and  wife,  where  the  pur- 
chase may  fairly  be  deemed  to  have 
been  made  for  anotiier  from  motives 
of  natural  love  and  affection.  Welton 
v.  Divine,  U 

8.  The  presumption,  in  such  ca.scs,  is 
that  the  purchase  is  intended  as  an 
advancement,  unless  the  coutriry  is 
established  by  proof  ib 

9.  Therefore  where  a  purchase  is  made 
by  a  husband,  and  the  deed  taken  in 
the  name  of  his  wife,  a  resulting  trust 
cannot  be  established,  in  favor  of  the 
husband,  without  some  evidence  to 
I'ebut  the  presumption  that  the  deed 
was  intended  as  a  provision  in  the 
wife's  favor.  ih 

3.  Liability  of  trustees. 

10.  On  the  25th  of  July,  1838,  C.  mad« 
a  general  assignment  of  all  his  projH 
erty  to  W.  and  N.,  in  tru.st  to  sell  and 
convey  so  much  real  estate  as  should 
be  sufficient  to  pay  his  debts,  and  to 
apply  the  rents  and  i>rofits  to  his  sup- 
port during  life.  C.  was  infirm  and 
in  debt,  and  incajiable  of  manasing 
his  own  affairs  at  the  time  of  making 
the  assignment.  The  trustees  sub.se- 
quently  sold  a  portion  of  the  assigned 
property,  called  "  the  Bavside  Farm," 
to  8.  W.  for  $15,000,  with  the  knowl- 
edge and  assent  ofC.,  the  as.signor, 
and  executed  a  deed  to  him, in  which 
C.  joined.  No  part  of  tlie  purcha.se 
money  was  paid,  but  the  ])urcha.scr 
gave  liis  bond  for  the  amount.  j>aya- 
ble  at  a  future  day.  The  debts  not 
exceeding  S'8000,  C.  consented  to 
the  sale  only  on  condition  that  the 
trustees  could  find  an  op|)()rtunity  to 
inve.st  the  surplus  remaining  after 
paying  the  debts.  The  trustees  ac- 
cordingly loaned  to  H.  $6000  ujwu 
real  estate  at  Newburgh,  which  sum 
S.  W.  coiisented  to  advance  toward.s 
the  purchase  money,  before  lie  obtain- 
ed i»ossession.  The  }iro|)erty  mort- 
gaged by  H.  was  subject  to  a  prior 
mortaage  of  S4000,  and  was  valued 
at  $16,00(1  C  knew  of  and  consent- 
ed t«,  this  loan  to  11.  Subsequently 
C.  died,  and  thetrustees  delivered  over 
to  B.  W.  S.,  his  executor,  the  bond 
and  mortgage  taken  from  H.  Tlio 
executor  took  no  measures  to  enforce 
the  payment  of  the  interest,  or  the 
principal,  from  II.  The  prior  nioi't.- 
gage  was  foreclosed,  and  aftei'  satisfy  • 


JNDEX. 


707 


inji  the  same,  tlicrc  was  a  suqilus  of 
$4956  84,  wliich  B.  W.  S.  appliwl 
for,  and  obtaineil ,  upon  H.'s  bond  and 
moitgas;e  ;  leavinj^  due,  for  principal 
and  inteiest.  to  the  estate  of  C. 
S2502.73  ;  for  which  a  decree  in 
chancery  was  obtained  aoainst  II., 
which  still  remained  due  and  unpaid. 
In  an  action  brought  by  the  devisees 
of  C.  against  the  trustees,  to  recover 
the  amount  of  that  deficiency  from 
t.hem ;  Held,  that  the  trustees  had 
not  been  guilty  of  any  dereliction  of 
duty,  either  in  selling  the  property, 
or  in  loaning  the  money  to  H. ;  and 
that  consequently  they  were  not  liable 
for  the  loss  which  had  occurred. 
Uiggins  v.  Whitsun,  141 

Jl.  It  cannot  be  expected  from  trustees 
that  they  should  act  upon  principles 
different  from  those  which  actuate 
cautious  and  prudent  men  in  the 
transaction  of  their  own  affaii-s.  Oth- 
erwise, the  office  of  a  trustee  would  be 
one  of  such  hazardous  responsibility 
that  no  prudent  or  competent  man 
would  ever  accept  it..  Per  Clerke,  J. 

ib 


u 

UxNITED   STATES   TRUST  COM- 
PANY. 

1.  The  charter  of  the  United  States 
Trust  Company  of  New  York,  is  not 
unconstitutional.  United  States 
Trust  Co.  V.  Brady,  119 

/  2.  Tfiat  company  is  not  a  corporation 
created  for  banking  purposes,  with- 
in the  meaning  of  section  4  of  ar- 
ticle 8  of  the' constitution.  ib 


VENDOR  AND  PURCHASER,  (OF 
CHATTELS.) 

1.  Readiness  of  purchaser  to  perform. 

I.  Where  one  party  agrees  to  sell  and 
deliver  goods  at  a  particular  place, 
and  the  other  agrees  to  receive  and 
pay  for  them,  an  averment  by  the 
purchaser,  of  a  readiness  and  will- 
ingness to  receive  and  pay  at  that 
place,  in  case  he  sues  for  a  non-de- 
livery, is  indispensable.  But  the 
ODiission  to  make  this  averment  is 


a  defect  which  will  be  cured  by  a 
verdict.     Clark  v.  Dales,  42 

2.  And  if  the  plaintiff  omits  to  make 
the  averment,  in  the  complaint,  the 
fact  will,  on  appeal,  be  presumed  to 
have  been  proved  on  the  trial ;  in- 
asmuch as  a  readiness  and  willing- 
ness to  perform  could  not  be  proved, 
so  as  to  authorize  a  verdict  for  the 
])laintifF,  without  also  proving  a 
readiness  and  willingness  to  do  so 
at  the  place.  ib 

3.  Where  there  is  a  mutual  oblisatiou 
on  a  purchaser  to  pay  the  purchase 
money,  and  on  the  vendor  to  convey 
tlie  property  purchased,  an  offer 
and  readiness  to  perform  on  the  part 
of  the  purchaser,  is  sufficient,  with- 
out tendering  a  deed  ready  to  be  ex- 
ecuted by  the  vendor;  especially 
where  the  vendor  refuses  to  convey 
at  all.     Stone  v.  Sprague,  509 

2.  Duty  of  disclosure,  by  purchaser. 

4.  The  law  does  not,  in  ordinary  cases, 
impose  ui)on  a  purchaser  of  proper- 
ty the  duty  of  disclosing  to  the 
seller,  at  or  before  the  sale,  the 
state  of  his  pecuniary  circumstan- 
ces, however  desperate  they  may 
be,  and  be  known  by  him  to  be. 
Mitchell  v.  Warden,  253 

5.  This  general  principle  is  applicable, 
notwithstanding  there  has  been  a 
long  course  of  dealing  between  the 
parties,  in  the  course  of  which  cred- 
it has  been  given  to  the  purchaser, 
and  he  has  [)unctually  performed  his 
engagements;  and  his  insolvency 
has  occurred  during  those  dealings. 

ib 

6.  No  relation  of  trust  or  confidence  is 
thereby  created,  which  should  en- 
title the  seller  to  expect  of  the  pur- 
chaser, or  require  of  the  purchaser, 
as  a  legal  duty,  to  communicate  to 
the  seller  information  of  his  ina- 
bility to  i)ay  all  his  debts,  while 
he  continues  his  business  and  the 
management  of  his  att'airs.  ib 

7.  Therefore,  although  a  purchaser  at 
the  time  of  making  an  additional 
purchase  from  j)ersons  with  whom 
he  has  been  in  the  habit  of  dealing, 
is  insolvent,  and  he  well  knows  his 
insolvency,  and  intentionally  con- 
ceals it  from  the  vendors,  by  simply 
withholding  his  knowledge  on  the 


708 


INDEX. 


subject,  without  otherwise  saying  or 
doing  an)'  thing  to  mislead,  and  he 
still  retains  the  possession  of  prop- 
erty, and  is  pursuing  his  business 
as  before,  he  is  not  thereby  guilty 
of  a  fraud,  entitling  the  vendor  to 
avoid  the  sale.  ib 

8.  But  if  the  purchaser,  at  the  time 
of  making  a  new  purchase,  is  not 
only  insolvent,  and  knows  himself 
to  be  so,  but  has  jjerformed  an  open 
and  notorious  act  of  insolvency,  by 
breaking  up  his  business  and  as- 
signing his  property  for  the  benefit 
of  his  creditors,  it  is  his  duty,  arising 
out  of  his  ])revious  dealing  with  the 
vendors,  to  communicate  that  fact 
to  them,  before  the  sale  ;  and  the 
violation  of  that  duty  amounts  to  a 
fraud.  ib 

3.  Who  is  a  bona  fde  purchaser. 

9.  A  person  receiving  from  another 
property  obtained  by  the  fraud  of  the 
latter,  witliout  ])aying  any  thing  on 
account  of  it,  and  with  notice  of 
facts  which  render  him  legally 
chargeable  with  knowledge  of  the 
fraud,  will  not  be  considered  a  bona 
_^de  purchaser.    Mitchell  v.  Warden, 

253 

4.  Sale  and  delivery  procured  bijfroAid. 

10.  A  sale  and  delivery  of  goods,  pro- 
cured through  the  false  representa- 
tions of  the  vendee  in  regard  to  his 
solvency  and  credit,  passes  no  title 
whatever  to  the  pro[)erty,  as  between 
the  parties ;  and  the  vendor  may 
maintain  an  action,  under  the  code, 
for  the  claim  and  delivery  thereof. 
Hunter  v.  The  Hudson  River  Iron 
and  Machine  Co.  493 

11.  In  such  an  action,  where  it  appears 
that  the  purchase  was  made  by  an 
agent,  it  is  material  for  the  plaintiff 
to  show  not  only  that  the  purchaser 
was  insolvent,  at  the  time  of  the  pur- 
chase, but  that  such  purchaser,  or 
his  agent,  or  both,  knew  of  sucli  in- 
solvency. Hence  the  declarations  of 
the  agent,  to  third  persons,  made  by 
him  wliile  acting  for  hisi)rincipal  and 
within  the  scope  of  his  authority, 
and  going  to  show  such  knowledge 
on  the  part  of  both  principal  and 
agent,  are  proper  evidence.  ih 

12.  In  an  action  to  recover  the  posses- 
sion of  a  quantity  of  corn,  purchas- 


ed by  the  do  en(!:.nt  for  ca«h,  ati.1 
delivered  to  him  on  tlie  jiromisc  ui" 
immediate  paynient,  it  api)eared 
that  the  defendant  assurid  the  ven- 
dor's agent  that  the  money  to  ])ay 
for  the  corn  was  arranged  for,  and 
that  the  vendor  could  have  it  as 
soon  as  the  corn  was  delivered  on 
board  a  ship;  and  tipon  that  con- 
'  dition  the  corn  was  delivered  to  the 
defendant,  who,  on  varif)us  pretexts 
avoided  the  ])ayment  of  the  money, 
for  several  days,  and  the  vessel 
sailed  for  Europe,  with  the  corn  on 
board  ;  the  defendant  on  the  same 
day  she  sailed,  executing  a  general 
assignment  of  his  {(ropi'ity  to  trus- 
tees for  the  benefit  of  his  creditors, 
and  being  insolvent  at  that  time  and 
at  the  time  of  the  ])nrchase,  and  hav- 
ing obtained  advances  upon  tiie  bills 
of  lading,  and  aj)plied  them  to  oth- 
er purposes.  //  was  held  that  both 
on  the  ground  of  fraud,  and  of  a  con- 
ditional sale  and  delivery,  the  plain- 
tiff was  entitled  to  recover;  and  a 
verdict  in  favor  of  the  defendant 
was  set  aside,  as  being  against  the 
weight  of  evidence,  and  a  new  trial 
was  granted.  Van  Ncste  v.  Co)h- 
o^•c'•,  547 

13  Such  action  will  lie,  although  the 
goods  have  been  transferred  to  an- 
other, as  securitj-  t"or  a  debt,  and 
are  on  board  ships  and  not  under 
the  matiual  control  of  the  jnirclias- 
er  when  the  action  is  brought.  The 
judgment  being  in  the  alternative, 
for  the  return  of  the  pri>perty  or 
the  payment  of  its  value,  the  de- 
fendant, if  he  has  not  the  pro,{> 
ert_v,  can  satisfy  the  other  require- 
ment of  the  judgment,  and  pay 
the  value.  -  ib 


w 


WAIVER. 

1.  The  general  doctrine  that  where  a 
party  does  not  ap])i'ar  he  waives 
nothing,  is  well  settled  ;  but  this 
means,  nothing  imi)eaching  the  ju- 
risdiction or  authority  of  the  cour^ 
to  act,  and  nothing  in  the  way  of 
"' jection  to  the  proceedings  and  the 
competency  or  siitfieieney  of  evi- 
dence on  the  ])art  of  tht^  plaintiff. 
This  is  tlie  extent  to  which  the  rule 


INDEX. 


709 


has  been  or  can  properly  be  carried. 
Clark  V  Van  Vrancken,  278 

2  With  the  exception  of  objections  to 
tlie  jurisdiction,  and  those  which 
arise  upon  the  proceedings  and 
case  of  the  i)laintiff,  all  objections 
are  waived  by  an  omission  to  ap- 
pear and  make  them  in  the  proper 
form  before  judgment.  ib 

3.  It  is  competent  for  a  defendant  to 
waive  a  technical  legal  defense 
grounded  on  an  illegality  in  which  he 
himself  knowingly  participated,  and 
to  affirm  the  contract  so  far  as  the 
parties  to  it  were  conc-eraed.  Pepper 
V  Haight,  429 

4.  A  defense  that  a  mortgage  is  void, 
for  being  given  upon  an  illegal  con- 
sideration, will  be  waived  by  the 
omission  to  set  it  up  specifically  in 
the  answer,  and  by  admitting  the  va- 
lidity of  the  mortgage  in  the  answer 
and  on  the  trial.    ,  ii> 


WAREHOUSEMAN. 

See  Wharfinger. 

WARRANT. 

Hee  Common  Schools. 

WHARFINGER. 

1  A  wharfinger  and  warehouseman,  by 
holding  himself  out  to  the  public  as 
such,  extends  a  license  to  enter  iipon 
his  premises,  to  all  persons  having 
occasion  to  do  so,  in  connection  with 
that  business.  Bogert  v.  Haight,  251 

2.  His  employment,  however,  is  a  merely 
private  one.  He  is  under  no  legal 
obligation  to  allow  the  use  of  his 
wharf  or  warehouse  to  every  person 
applyins',  even  if  he  has  suitable  ac- 
commixlations,  and  a  reasonable  re- 
ward is  offered  him;  but  he  may 
limit  the  general  license,  or  terminate 
it,  in  the  case  of  any  particular  per- 
sons, by  giving  them  notice  not  to 
come  upon  the  premises.  iJ) 

%  And  after  he  has  given  such  a  notice 
to  an  individual,  and  thereby  revoked 


the  license  as  to  him,  an  entry  of  liie 
latter  upon  the  wharf  is  a  trespass, 
for  which  an  action  will  lie.  ih 

4.  The  possession  of  the  prem5ses,by  the 
plaintiff,  in  such  a  case,  is  sufficient 
evidence  of  his  right  to  bring  the  ac- 
tion, ih 


WILL. 

1.  Construction. 

1.  A  testator,  by  his  will,  made  in  Marcl 
1801,  gave  to  his  wife  the  income  of 
his  real  and  personal  estate,  during 
her  widowhood.  He  then  devised  as 
follows:  "  I  give  and  bequeath  unto 
my  oldest  son,  Jacob,  the  corner  lot, 
on  the  corner  of  Hester  and  Elizabeth 
streets ;  I  also  give  and  be<pieath  un- 
to my  eldest  daughter,  Barbara,  the 
lot  adjoining  ♦he  comer,  facing  Eliza- 
beth street;  I  give  and  bequeath  to 
my  daughter  Eliza  the  lot  adjoining 
the  above,  facing  Elizabeth  street; 
and  I  also  give  and  beciueath  to  my 
youngest  son,  William,  the  lot  adjoin- 
ing the  above."  The  testator  died  in 
March,  1801,  and  his  son  William  in 
August  thereafter.  Af^er  the  testa- 
tor's death,  each  of  his  four  children 
claimed  and  took  one  lot ;  the  corner 
lot  being  called  Jacob's,  the  next 
south,  Barbara's,  the  next,  Eliza's, 
and  the  next,  William's.  In  1828, 
the  widow  of  ihe  testator  conveyed  to 
Jacob  all  her  title  to  any  lands  of 
which  her  husband  died  sei.sed  or 
possessed.  Jacob  then  conveye<l  in 
fee  to  J.  S.  the  whole  of  lot  No.  137, 
without  any  thing  to  indicate  that  he 
was  selling  an  undivided  interest  only 
in  the  lot.  In  1822,  Barbara,  w.th 
her  husband  and  the  widow,  mort- 
gaged lot  No.  136  to  C.  for  $550; 
nothing  in  the  mortgage  indicating  an 
intention  to  pass  the  title  to  an  undi- 
vided share  only  of  the  lot.  This  lot 
was  afterwards  sold  on  a  foreclosure 
of  the  mortgage,  and  purchased  by  C. 
Before  this  sale,  and  after  the  con- 
veyance by  the  widow  to  Jacob,  the 
latter  conveyed  to  J.  S.  all  his  "  estate, 
right,  title  and  interest"  of,  in  and  to 
lot  No.  136,  "  being  an  estate  in  said 
Jacob  M.  for  the  life  of  his  mother." 
In  1829,  Eliza  joined  with  her  hus- 
band, A.,  in  conveying  the  whole  of 
lot  No.  135  to  P.  it!  fee,  with  full  cov- 
enants, and  without  any  intimation 
that  the  grantors  conveyed,  or  had 


710 


INDEX. 


only  an  undivided  interest  in  that  lot. 
William  died  an  infant,  in  1801,  and 
liis  estiite  passed  to  Jacob,  Baibava 
and  Eliza.  In  1821,  Barbara  and  Eli- 
za, with  their  respective  husbands, 
joined  with  the  widow,  and  conveyed 
to  Jacob,  in  fee,  two  undivided  third 
parts  of  lot  No.  134,  by  a  deed,  with 
full  covenants  as  to  the  estate  granted, 
and  describinrrtliemselves  as  co-heirs 
of  William,  with  Jacob.  In  1822,  Ja- 
cob conveyed  this  lot  to  P.  C.  with 
full  cov.enants,  and  without  any  inti- 
mation that  he  conveyed  only  an  un- 
divided share.  Barbara  died  in  1835, 
leavincr  six  children,  one  of  whom  died 
in  1839.  Tlie  plaintiff  was  one  of  her 
children.  He  clainifd,  that  the  will 
gave  only  a  life  estate  to  each  child, 
in  each  lot;  that  his  mother,  on  the 
death  of  AVilliam,  was  entitled  to  an 
undivided  third  in  each  lot,  in  fee ; 
that  such  right  descended  to  her  si.x 
children,  and  on  the  death  of  one  of 
them  vested  in  the  five  survivors ; 
and  that  the  plaintiff  was  thus  enti- 
tled to  one  fifteenth  part  of  lots  136 
and  137.  Held,  1.  That,  a.ssuniin(r 
that  the  will  did  not  convey  to  each 
child  the  fee  of  the  lot  devised  to  him 
or  her,  but  only  a  life  estate  in  it,  it 
was  plain  that  each  child  must  have 
known  that  it  was  the  intention  of  the 
testator  to  convey  the  foe.  That 
slight  evidence  ought  to  be  sufficient 
in  such  a  case,  that  they  had  deter- 
mined to  carry  out  the  real  intent  of 
their  father,  although  not  expressed 
according  to  law.  That  here  was  the 
strongest  evidence  that  they  had  so 
determined,  and  that  they  carried  out 
this  honest  determination;  every  act 
of  theirs  showing  that  determination, 
and  showing  it  in  a  manner  strictly 
conformable  to  law.  2.  That  if  the 
will  did  not  give  a  fee  to  each  child 
in  a  sepai-ate  lot,  then  each  child 
had  a  life  estate  in  a  .separate  lot, 
and  they  were  together  tenants  in 
common  of  the  reversion  in  fee,  in  all 
the  lots,  which  reversion  descended  t^ 
them  as  the  heirs  at  law  of  their  la- 
ther, as  real  estate  not  disposed  of  by 
his  will.  3.  That  if  the  doctrine  of 
estoppel  could  be  applied  so  as  to 
prevent  parties  disturbing  a  partition, 
merely  because  there  had  been  pos- 
session under  it,  there  was  much  more 
ground  for  applying  it  where,  as  in 
Lhis  :ase,  each  owner  had,  by  his  or 
her  deed,  claimed  to  own  a  separate 
lot  in  entirety,  and  had,  under  that 
claim,  conveyed  the  land  by  deed  or 


mortgage,  and  subsequent  foreclosure, 
and  received  from  the  purchasers  the 
full  consideration  for  the  entire  title 
to  the  lot  under  this  representation, 
made  by  all  and  by  each,  that  each 
held  a  lot  se{)arately  in  fee  and  with- 
out any  co-tenant.  That  lil  the  chil- 
dren of  the  testator,  therefore,  were 
estopped  now  from  denying  that  each 
held  his  own  lot  in  fee  and  in  several- 
ty. 4.  That  if  each  of  the  owners  had 
been  together  when  they  conveyed, 
and  hud  at  the  same  time  conveyed 
to  the  several  purchasers, there  could 
be  no  doubt  that  they  each  claimed 
to  hold  a  lot  in  severalty,  and  con- 
ceded to  the  others  the  like  rii;ht. 
Such  conveyance  would  be  conclu- 
sive evidence  of  a  partition  i)revi- 
ously  agreed  on  ;  and  they,  by  their 
acts,  causing  others  to  believe  it 
was  made,  would  be  estopped  from 
denying  it.  That  the  conveyances, 
made  separately  and  at  successive 
times,  equally  established  the  fact 
of  a  partition  previously  agreed  on. 
6.  That  it  made  no  difference  that 
Barbara  and  Eliza  were  married 
women.  A  married  woman  can  no 
more  be  allowed  to  conmiit  a,  fraud 
than  a  single  woman.  She  is  com- 
petent to  know  the  ditferenee  be- 
tween fraud  and  honesty,  and  to  un- 
derstand the  obligation  not  to  stand 
by  and  allow  another  to  purchase 
from  h(!r  on  the  supposition  that 
she  has  a  perfect  title,  wlien  she 
knows  she  has  not.  That  these  acts 
and  deeds  of  the  i)arties  were  such 
evidence  of  an  actual  i)artition  be- 
tween the  j)arties  that  a  jury  or 
court  ought  to  find  that  there  was 
an  actual  partition  in  fact.  And 
that  the  several  deeds  and  the 
mortgage  confirmed  that  partition, 
so  as  to  bind  even  the  married 
women;  tiie  deeds  atid  mortgngi's 
having  been  acknowledged  by  the 
latter  on  a  private  examination,  so 
as  to  pass  their  title.  Mount  v. 
Morton.  123 

2.  A  testator,  by  his  will,  devised  a^'  fel- 
lows :  "  I  give  and  bequeath  unto  my 
daughter  Mary  Roof,  the  use  or  in- 
terest of  SSOd,  for  and  during  her 
natural  life ;  and  at  her  decease  I 
give  and  bequeath  unto  my  grand- 
daughter, M.  A.,  S-200  of  the  said 
S800."  The  test^itor  subsequently 
directed  his  executors  to  divido 
among  his  children  and  grandchil- 
dren, in   proporton    to    the    several 


INDEX. 


711 


lesacios  bequeathed  to  them,  "  the 
said  sum  of  $Q00  left  at  the  decease 
of  his  dauohter  Mary,  and  all  the 
residue  and  remainder  of  his  estate 
not  otherwise  disposed  of"  After  the 
testator's  death,  and  during  the  life- 
time of  Mary  Roof,  two  of  the  lega- 
tees, being  married  women,  with 
their  husbands  quitclaimed  to  R.  R., 
husband  of  Mary  Roof,  and  to  his 
heirs  and  assigns  forever,  "  all  the 
right  and  title  which  they  then  had 
or  might  thereafter  have,  to  a  cer- 
tain legacy  bequeathed  to  his  wife 
Mary  Roof"  by  the  testator.  Held 
that  the  thing  released  or  quitclaimed 
was  only  the  legacy  bequeathed  to 
Mary  Roof,  which  was  not  the  S'800 
or  the  S600,  but  onlv  the  use  or  in- 
terest of  tSOO  for  life";  the  legacy  be- 
queathed to  her  being  only  a  life  es- 
tate in  the  S'800,  and  the  legacy  given 
to  the  other  legatees  being  the  rever- 
sion in  that  sum.  That  such  rever- 
sion did  not  pass  by  the  quitclaim  • 
and  that  consequently  the  executor 
was  not  liable  to  R.  R.  for  the  amount 
of  the  shares  in  the  S600  which  he 
had  paid  over  to  the  assignors  or  re- 
leasors, after  the  death  of  Mary  Roof. 
Cr.ERKK,  J.,  dissented.  JRoof  v. 
Fountain,  527 

2,  Execution. 

8.  Where  the  subscribing  witnesses  to 
a  will  subscribe  their  names  at  the 
end  of  a  memorandum  of  erasures 
and  interlineations  which  is  imme- 
diately below  the  attestation  clause, 
this  is  a  sufficient  signature  by 
them.  McDonovgh  v.  LoughUn,  238 

4.  The  memorandum  is  merely  a  part 
of  the  certificate,  which,  taken  to- 
gether, states  that  the  paper  as  al- 
tered was  executed  by  the  testator 
and  attested  by  the  witnesses.       ih 

5.  Where  a  testator  said  to  one  of  the 
subscribing  witnesses,  ^'  Mr.  McC. 
[the  scrivener]  will  wantj'ou  to  be  a 
witness  to  the  will ;"  and  the  scriv- 
ener read  the  attestation  clause  to 
the  testator,  and  asked  him  wheth- 
er he  wished  the  persons  present  to 
*ie  witnesses  to  the,  will,  and  he 
said  he  did  :  Held,  that  this  was  a 
sufficient  request  of  the  witnesses 
to  become  such.  ib 

8  It  is  not  necessary  that  a  testator 
should  himself  formally  repeat  the 
words.     It  is  enough  if  he  directly 


and  audibl}' adopts  the  language  of 
another,  used  in  his  presence  and 
hearing.  ih 

3.  Proof  of. 

7.  The  admission  and  examination  of 
an  executor  and  trustee  as  a  wit- 
ness to  prove  the  execution  of  a 
will,  does  not  annul  his  appoint- 
ment of  executor,  or  the  legacies 
to  him  as  a  trustee,  where  nothing 
is  given  to  him,  nor  is  any  appoint- 
ment conferred  upon  him,  for  his 
own  personal  use,  but  all  is  fidu- 
ciary and  for  the  benefit  of  others. 
McDonough  v.  LoughUn,  238 

8.  The  fact  that  the  donee  of  a  mere 
naked  power  may  be  entitled  to  a 
compensation  for  his  services,  does 
not  necessarily  render  him  benefi- 
cially interested  in  the  execution  of 
the  power.  ih 

9.  Nor  will  the  circumstance  that  an 
executor  is  entitled  to  commissions 
for  his  services,  render  him  an  in- 
competent witness  to  establish  the 
will.  lA 

10.  Those  commissions  are  allowed  bj' 
statute,  by  way  of  compensation  for 
the  executor's  services,  and  are  not 
a  gift  under  the  will.  ii 


WITNESS. 

1.  Where  an  objection  to  the  compe- 
tency of  a  witness  examined  before 
a  surrogate  is  not  raised  there,  it 
will  be  deemed  to  have  been  waiv- 
ed, and  will  be  of  no  avail  on  ap- 
peal. McDonough  V.  LoughUn,  238 

2.  Where  a  defendant  has  no  separate 
defense,  in  an  action  on  a  joint  con- 
tract, a  co-defendant,  called  as  a 
witness,  can  prove  nothing  that  will 
not  enure  to  his  own  benefit,  as  well 
as  the  benefit  of  his  co-defendant; 
and  as  to  such  matters  he  is  there- 
fore interested,  and  of  course  in- 
competent.    King  v.  Lowry,     532 


WORK  AND  LABOR. 

1.  Where  one  persor  performs  labor  for 
another,  the  law  presumes  a  request, 


712 


INDEX. 


and  a  promise  to  pay  what  such  labor 
is  reasonably  worth,  unless  it  is  un- 
derstood that  it  is  to  be  perfomied 
gratuitously,  or  it  is  performed  under 
circumstances  which  I'cpel  the  pre- 
sumption of  a  promise  that  compen- 
sation shall  be  made.  Lewis  v. 
Trlckey,  387 

2.  Where  an  employer  agrees  to  ren- 
der an  equivalent  for  seiTJccs  per- 
foimed,  it  is  no  defense  to  an  action 
ayainst  him  to  recover  compensation, 


that  he  agreed  to  pay  somn  th.rd 
person  who  lias  no  legal  claim  to  the 
service,  or  right  to  the  compensation  ; 
especially  where  the  defendant  does 
not  show  that  he  has  in  fact  paid  such 
third  person.  ib 

3.  When  pajTnent  for  labor  is  to  be  made, 
the  law  will  give  it  to  him  who  per- 
forms the  labor,  unless  some  other 
person  can  show  a  better  title.        ib 

See  Opinions  op  Witnesses 


END   OF   VOLUME   TWENTT. 


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